Is Chen Shui-bian a Surrogate Scapegoat for Taiwan?

◎Jerome F. Keating P.D.

There are crimes and then there are crimes; there are trials and then there are trials; there are standards and then there are standards; unfortunately, however, there are also double standards. These concepts have all come into play in the complex and twisted corruption case of Taiwan’s former president Chen Shui-bian. This is a case that will have few winners and justice will be lucky if it is even half served, for at heart, what is on trial here is more than just Chen himself though he certainly is. On trial is the legacy of a one-party state system of corruption and double standards, a party where some still carry the bitterness and vindictiveness of lost entitlement and unrealized dreams, a nation that struggles to emerge from a belabored past that includes a lack of transitional justice, stolen state assets, and finally the complicity and betrayal of lost ideals on all sides. If that is not enough, on trial may even be the after effects of a hybrid culture on Taiwan trying to adjust to the realities and differences of a post-modern judicial world.

How can so much be wrapped into one little trial? Though investigations of Chen had been going on long before, the official starting point can be set when Chen Shui-bian stepped down from office on May 20, 2008. No sooner had he stepped down than he was clapped with a restraining order from leaving the country. In the name of justice, his enemies were out to get him. They had long been tipped off by Swiss banks operating under post 9/11 US imposed sanctions that large sums of money had been moved from Taiwan to Switzerland during Chen’s presidency. Vengeance, for reasons that will be stated shortly, was theirs and they were not about to pass up the chance.

What followed this would be Chen’s questionable preliminary imprisonment, denial of certain human rights due a prisoner, trial, conviction, appeal, reversal of some but not all convictions, and further appeal leading up to today’s present situation. Throughout this labyrinthine process, for those who try to follow it, is a constant application of double standards and selective prosecution that if it happened in only one instance could be excused. However when this is placed in the totality of Chen’s trial and in the context of Taiwan’s historic and unfortunate one-party state legacy, it points to the difficult time that true justice will have to be served. If there are any skeptical of this they should now realize this stark reality; i.e. that despite three years of untold accusations, imprisonment, fishing expeditions and all sorts of leaks and hullabaloo about Chen Shui-bian and corruption, the only real convictions that the prosecutors have been able to substantiate and sustain are those in two bribery cases (one large and one small). Those two cases, which are under appeal, rest solely on the very questionable and potentially illegally obtained testimony of two people. In the larger case, the lawyers of the defendant Jeffrey Koo Jr. (the one that gave the alleged bribe), have stated that prosecutors bargained and pressured him to “lie” in his accusation of Chen. In the smaller case, that of Diana Chen, there is also question of brow-beaten testimony exhorted from a woman by threatening to deny her future work if she did not say what the prosecutors wanted her to say. Buckle your seat belts; this is going to be a long and bumpy ride.

Start with the important background setting. Taiwan, under the Chinese Nationalist Party (KMT) has had a 40 plus year bitter legacy of a one-party state replete with White Terror, Martial Law, deaths, and imprisonments. Like any one-party state, i.e. the current government in the People’s Republic of China (PRC), it had viewed (and for some still views) any questioning of its imposed authority as subversive, illegal and disloyal. For those in power such thinking subsequently breeds a sense of self-righteous entitlement, pride, and privilege. When the KMT was finally forced to share its autocratic power in a multi-party democracy in Taiwan, this left a vacuum and vindictiveness among many members; they regretted the loss of that privilege and entitlement and the exposure of their sullied past ideals. Chen Shui-bian was there in the pivotal years of that loss as a lawyer for the defense in the infamous Kaohsiung Incident (1979) and the trials that followed.

Taiwan’s continuing struggle for democracy did not proceed easily; there were still imprisonments, torture and deaths. In the early 80s, three high profile murders epitomized the vindictiveness in that begrudging loss. They are the murder of Lin Yi-hsiung’s mother and twin daughters (6 years old), the murder of US Carnegie Mellon professor Chen Wen-chen and that of US citizen Henry Liu in the USA. During that same time, Chen Shui-bian’s wife was permanently crippled in a highly questionable accident after Chen had run for county magistrate. Some could say that this is all past but it isn’t. Chen and too many current rulers in the KMT were contemporaries then and are contemporaries now.

Besides Chen’s involvement in the Kaohsiung Incident trials, much else has contributed to make him the bête noire of the KMT. Chen is Taiwanese and not Chinese. Chen has no history and little sympathy with the KMT’s lost Civil War in China; he was not part of the diaspora that fled to Taiwan with shattered pride. Even though he is a lawyer and passed the difficult Taiwan bar exam (something Ma Ying-jeou never did) Chen is repeatedly viewed as redneck Taibazi in the eyes of many KMT; this cultural image needed to be projected on the Taiwanese to justify the KMT “saving takeover” of the island. Further in 1994 Chen was the one who became Mayor of Taipei (1994-1998) when the KMT split its vote between Huang Ta-chou and Jaw (Zhao) Shau-kong. In 2000, Chen took Taiwan’s Presidency again due to a split between James Soong and Lien Chan; Chen won with 39 per cent of the vote. Though these losses were of the KMT’s own doing, Chen still became representative of the man who took these prized possessions from the KMT. But it was in 2004, where the real rub came; this time against a sure fire linkage of Soong and Lien, Chen still won by a fraction of 50.1 per cent. At heart here was the assassination attempt, which in many blue minds was staged to gain sympathy. Much of the previous could be seen as the KMT destroying itself, but this was for them a “clear steal.” For all these and more, there has been a strong will in the KMT to bring Chen down; a vindictive killing may no longer be possible but imprisonment and disgrace would satisfy. In so many ways Chen epitomized the upsetting of the hierarchical order. Add to this, the fact that Chen has a strong will and often abrupt personality as well as being a determined and charismatic leader. This would make him enemies even in his own party.

Another problem for Taiwan is its carry over judicial system, called dinosaur judges and prosecutors. When the Berlin Wall fell, and east Germans were given freedom one of the first things done was the seizing of the Stassi files and the ouster of all of the old judges that had reigned during the Communist days; when Taiwan’s one-party state finally gave way, there was no such purging; as a result, Taiwan has many judges and prosecutors who are termed “dinosaur judges” and “dinosaur prosecutors;” these have maintained the mentality of privilege and righteousness from the one-party state days. Included in this system is the fact that the Republic of China’s (ROC) legal code borrowed heavily in the 1930s from that of Nazi, Germany vis-a-vis treatment of prisoner detention without specified indictments. Judicial reform in Taiwan has begun in 2011, but it is far from resolved.

Utilizing the Nazi era influenced elements on detention, the ROC law allowed Chen to be jailed without charges on November 11, 2008 as the government built its case; this detention has rarely and selectively been applied in the past. If it had, it usually was on those who were “perceived enemies” of the one-party state. Though Chen already had a restraining order and no formal charges were issued, prosecutors still claimed that he might try to flee the country. At this time, several prosecutors made bold statements that they would resign if they did not bring a conviction of Chen. Such claims, in a face saving culture, present many potential problems and conflicts of purpose. As it would become more and more difficult to prove the various cases against Chen, prosecutors repeatedly would resort to highly questionable means rather than admit failure.

When the reason for Chen’s imprisonment without charges was contested in court, Chen was released on 12/13/08. Then came the KMT switching of judges; Judge Chou Chan-chun who had released him would be replaced so that a judge favorable to imprisoning Chen could be selected. Not only that, Chen’s four months detention without charges would later be extended for another two so that prosecutors who had begun their investigation years earlier would have “time to build their case” against what would be a prisoner not allowed proper access to attorneys.

Close on the heels of the above, came other subsequent violations and unprofessional treatment. In December 2008, at a Law party held for all judges and prosecutors, a joint skit was held mocking former President Chen and the humiliating way he was taken to prison in handcuffs. Prosecutors and judges should have balancing adversarial roles in Taiwan’s justice system, but here there was a joint collusion to mock the former president. The Minister of Justice would attempt to pass the skit off as just fun. Abuses of power would continue.

A new violation then took place. While Chen was jailed without charges, his chief defense lawyer tried to visit him; he was denied privacy with Chen. The alleged reason was that Chen needed to be prevented from working deals, though in this several year old case case if deals were to be worked they would have long been established. Again it was a basic violation of prisoner’s rights of due process and attorney-client privilege. At heart, in addition to punishing Chen, prosecutors wanted to know what Chen’s defense strategy would be; it was similar to illegal wire-tapping but even worse and more blatant. Two prosecutors had to be present at all times and if they missed anything, the sessions were also videotaped. This violation of prisoner rights was taken to court and found to be illegal. However even after it was found illegal since it would still take two months for the paper work of the court’s decision to go through the system, the prosecutors persisted in their illegal listening until the paperwork cleared. Apparently they needed to stack the deck; their premature boast that they would get a conviction, was taking a nefarious effect.

Harassment and abuses continued. To cover the accusations of ill-gotten money, the Chen family deposited some NT$700 million with the court. Prosecutors however wanted more; in a harassing way to force Chen to bargain with them, they wanted the court to seize all of the Chen family assets. Since the prosecutors had only been able to establish questionable guilt for NT$400 million, the High Court finally ruled on 3/15/11 against the prosecutors.

On August 19, 2010, a KMT dominated Legislature passed an amendment to the Act Governing Preferential Treatment for Retired Presidents and Vice Presidents; while generally applicable for all, this focused primarily on denying Chen any and all of his privileges. The Legislature also passed a law that would aid prosecutors in cajoling those who give bribes by placing the burden of guilt on those who accept the bribe. Culturally prosecutors always want defendants to admit to at least some guilt; this gives them face and justifies whatever means they may use in cases. On the flip side, this would lead a stubborn Chen to persist in his innocence. His actions he said could be justified by the system in place.

To further understand the case one needs to know what can be called other profitable systems left over from the KMT one-party state days. Taiwan has two lax, lenient and/or flexible laws regarding politicians. One covers the use of campaign funds. Campaigns are expensive and money to run them is needed. However, there are little restrictions on how that money, once gotten, is used. At the end of the day, a person who runs for office can basically keep any unspent donations he gets. Running is expensive but it can also be lucrative. Similarly the head of a political party receives a certain amount of money per vote given. As one of many examples, James Soong has not had a job since 1998. Nonetheless he has lived quite handsomely because as head of the People’s First Party (PFP) and as a regular candidate in elections he has garnered much funding. Jaw (Zhao) Shau-kong once head of the near defunct New Party (NP) retired from politics and easily purchased UFO Broadcasting Company in a similar way. That Chen has used this KMT devised system and become the recipient of many political donations is more salt in the wounds of KMT dislike.

Secondly, once in office politicians receive special allowances and funds varying on the position. These can be used for different purposes, rewarding staff, special projects etc. entirely at the office holder’s discretion. Usually one need only provide some form of receipts on such. These allowances are discretionary funds and can be a personal windfall if handled correctly. By intent, the funds are to be used for purposes helpful to one’s duties, but the law gives far too much leeway. It is not the purpose here to discuss the pro and con of such system but to acknowledge that it exists and much of Chen’s money appears to come from either political donations and/or his discretionary funds.

A third element is the cultural concept of guanxi, the use of networks of influence to gain a favor. Guanxi conflicts with bribery laws. The real issue the bribery challenge raises is in the distinction in legal definition of the cultural concept of guanxi and that of bribery. Where does guanxi end and bribery begin? New laws allow the person giving the bribes to get off scot-free as it were. This however provides vindictive and unscrupulous prosecutors a tool to badger and “bribe” defendants. Jeffrey Koo Jr.’s lawyers have stated that prosecutors used this technique to get him to say what was not true. Similarly, Diana Chen had repeatedly claimed that her gift was a political donation, though she had no receipt for it. Then when the law was changed, she was allowed to plead “state’s evidence” and get off free. While earlier prosecutors could illegally monitor Chen’s conversations with his lawyers, there has never been any one to monitor the prosecutor’s conversations with those that “bribed” Chen. Koo’s lawyers have certainly cast doubt on this aspect.

In these cases, culture does come in as justice and the legal system must navigate around the hierarchical system of guanxi where one gives gifts to those above and receives from those below; where even doctors with a Hippocratic oath are given and accept gifts presumably to ensure that they give proper attention to family members in the hospital.

What are Chen’s crimes? There is no question that Chen had profited immensely during his presidency, but was it illegal? He has publicly stated he felt he did something wrong but Chen is not a man to give ammunition to his prosecutors. What he sees as wrong may be his betrayal of the Democratic Progressive Party’s (DPP) ideals and the trust of those that supported him. Back to crimes then, of all those thousands who have held legislative, national assembly and other offices as well as that of president for the past sixty plus years on Taiwan, Chen raises the issue as to why he is the only one whose funds have been carefully dissected and examined. This may partly be due to the post 9/11 world regulation of the USA regarding the transfer of funds, but nonetheless, Chen is also the only one who has been held without charges while the examination of his case was being done. If anyone wishes to get a feeling of the grand scale of monies involved in Taiwan politics Google Taiwan’s one case of the Lafayette Frigate Scandal. In comparison to what has gone on before including Taiwan’s iron rice bowl legislators and members of the National Assembly (1947—1992), the monies that Chen is being accused of taking are a spit in the ocean.

This raises yet a deeper question is Chen being tried more as a surrogate scapegoat for a corrupt system that remains from the KMT one-party state empire? Both blue and green politicians have participated and benefited from this system. In the film, A Few Good Men, Jack Nicholson in the character of Colonel Jessep utters the following famous line when Tom Cruise as prosecutor had asked for answers and then the truth. Jessep retorts, You can’t handle the truth.” Is this what Taiwanese need ask themselves when they seek answers and the truth in the Chen trial? Can they handle the truth, the whole truth? We speak not just of Chen’s charges, but also of the prosecutors, the system, the extent of past crimes etc. Is Chen a surrogate scapegoat to avoid any further examination of the inadequacies of a current bankrupt system? Chen’s defense is that all he has done is both justified by the system and preceded by thousands of others many of whom as high-ranking members of both parties have benefited from. He has never attempted to flee, ironically it ay be because in his pride, he wishes to prove that his only crime is to use that system. Is this a truth that Taiwan wants to face?

On 4/29/11 the Supreme Court acquitted Chen of guilt in US$330,000 secret funds case; this supported decisions by the Taipei District Court and the Taiwan High Court. But it also revealed a frequent type of abuse by prosecutors. Despite losing at all levels because they had no evidence, Chen’s prosecutors had continued in what can be called a “method of death by a thousand cuts” or a “thousand insinuations. They not only punished Chen by this method but also the untold people brought in for questioning in numerous fishing expeditions. For legitimate and illegitimate reasons prosecutors can drag a case out for years, imposing loss of employment and heavy court costs on a defendant so that even if they are not successful, prosecutors can harm if not destroy an individual. The case of Dr. Shieh Ching-jyh involving the High Speed Rail in Tainan is a good example of such. For political and other reasons, Dr. Shieh was forced to repeatedly defend his name. Prosecutors need to be aggressive, but judges must make a distinction between an aggressive prosecution and prosecutors’ repeated use of this abusive technique with defendants. Is that what has been used in Chen’s special funds cases and bribery cases?

So now, at the end of the day examine how after years of pressuring, harassing, jailing of innumerable alleged accomplices, switching judges, and untold fishing expeditions, all that prosecutors have achieved in Taiwan are two convictions based on questionable and perhaps forced testimony. One is that of a harassed woman Diana Chen and the other is that of a bargained with Jeffrey Koo Jr. a man whose family has played all sides of the law and survived from the Japanese era, through Martial Law, up to the present.

Koo under challenge in many issues was staying outside Taiwan lest he be put in prison without official charges. Special investigator Yang Fang-ju then flew to Japan to grant Koo immunity” if he would testify. He came and said what the prosecutors wanted to hear. But then in May 2011, a bombshell hit. Koo’s lawyers said that Koo did not remit bribe money to Chen as accused; instead a deal had been worked out with prosecutors and the Special Investigation Panel (SIP) for Koo, to fabricate his testimony; in return for this he was supposedly not being prosecuted in other matters.

Harassment did not end. From the beginning of the trial, leaks had continually flowed apparently from the prosecution even though formal charges and indictments had not been made. Chen was regularly being tried in the court of public opinion to enhance the upcoming prosecutors’ case. Yet later, in double standard fashion, prosecutors used the cause of suspicion of different leaks to indict Judge Chou Chan-chun and his secretary Liu Lee-ying. They were supposedly negligent in not sealing a document that then led to the disclosure of a witness name in a separate case. Judge Chou of course is the one who had originally granted Chen freedom when he was held without charges back in 2008. He also had later stated that since Chen did not oversee bank mergers he could not have been bribed in such a matter; this judgment by Chou was supported by the later Supreme Court decision. Prosecutors said that the harassment of Chou was not political.

While there may be outrage and disillusionment concerning Chen’s profits, he remains the only “criminal” in this mess. No one has ever challenged James Soong’s past and held him without charges on all he may have stashed away. He did have to give some money back but he was never jailed. Ma Ying-jeou, also charged with a similar crime was never jailed; he was allowed to meet freely with his secretary Yu Wen who then took the blame. After Yu Wen served nine months, his job was waiting for him; is this coincidence? Excuses and freedom allowed to Ma were not allowed to Chen. Similarly when Ma apparently pocketed some money that he claimed was used to pay off/reward loyal employees, Ma did not provide the appropriate receipts. Reports say that he asked some employees to claim they received rewards, yet there was no pursuit or questioning in this regard.

We have thus far not touched on Chen’s health and living conditions. There too, a double standard repeatedly shows. Examine the case of Admiral Wang His-ling who was found guilty of masterminding the murder of Henry Liu in 1985, Wang was finally imprisoned in a luxury suite with a kitchen, study, and family and/or visitors stay-over rights; he served six years of a life sentence and was set free. Ironically almost concurrently Chen Shui-bian was serving time in a smaller cell at that time for challenging the one-party state. Read that to mean that murder to protect the belief of the KMT one-party state merits one a cushy jail apartment and six years time. Chen then served

Today, in a supposedly more enlightened time, Chen who has been imprisoned simply for bribes should supposedly have better or improved conditions than Wang had for murder. Yet Chen’s current miniscule cell is a box in comparison to Wang’s apartment. Chen’s health care is also not being met in the prison. Is the real reason that too many want him to truly suffer if not wishing him dead?

Further, whenever Chen has left the prison, whether to the hospital or to attend his mother’s funeral, he has been guarded more securely and by more police than the proverbial Fort Knox. Contrast this as a double standard in the KMT government’s vigilance. A while back, a well-known gangster and certainly a much higher flight risk than Chen was allowed to go to the hospital with two policemen as escort. Somehow though old and sick, he walked away from them, found his way to a flight to China and escaped. None were punished. The gangster later returned for reasons unknown; perhaps he felt he could get better health care in Taiwan. In a separate case, a convicted spy was also recently returned to Taiwan from the US. Surprisingly, and again under Ma’s government, he was able to walk off the plane in Taiwan, elude Taiwan law enforcement and again disappear. He probably has also gone to China.

Chen’s health with lack of sunlight, exercise and an inactive style has raised protest from the US based Formosan Association for Human Rights (FAHR); the prison had ignored Chen’s repeated health requests for a month; Chen already has some 1200 days in prison. Normally prisoners even can work eight hours a day in prison factories; that Chen is confined to a small damp cell 24 hours a day for security reasons is a far stretch. Why should a man held for simply accepting bribes for which he has put far much more in collateral be held in such conditions while he appeals?

There remains more. Taiwan’s President Ma Ying-jeou repeatedly talks of the “corruption” of only Chen. He also claims he does not want to interfere but has interfered when what he wanted to materialize did not happen. Ma first almost immediately on taking office, declassified documents that it was hoped would expose Chen. Ma then protested when the lower court exonerated Chen in the special funds and bank merger accusations by saying he must respond to public cries for justice. The Supreme Court almost as a rebuff to Ma, finally exonerated Chen because there was no proof that he took some US $ 20 million in exchange for promises not to block separate mergers initiated by Cathay Financial Holdings and Yuanta Financial Holdings. Ma offered no apologies.

Select prosecution is evident in different cases as that of the shooting of Sean Lien in December 2010. This has come to be called the KMT “dirty laundry” case. The police have the dead body, the wounded Sean Lien, the shooter, the weapon, untold witnesses and still nothing is resolved nor discussed in the public forum by the media. Ma is silent. This case cannot be blamed on the DPP, though political mileage in that regard had been sought immediately after in the 2010 five cities mayoral election. But whether Sean Lien or the local KMT candidate was the target in an apparent gangster deal gone bad is an area where prosecutors do not want to go. Lien Chan who to this day claims that Chen manipulated the 2004 assassination attempt to rob him of the presidency has not raised his voice for a pressing investigation of the shooting of his son.

Selective leniency was also seen in the Diane Lee case. After Lee was convicted of “ripping off” the country by collecting some US$3 million in illegally gained salary, she still never saw a day in prison even after conviction. At issue was the fact that she held dual citizenship, a fact that would have made her a greater flight risk since she could have a US passport. Ironically while Lee’s defense was that she thought her US citizenship ended when she took office, she had earlier not allowed that excuse to an opposition official that she accused of the same crime. Later a second, (perhaps dinosaur judge) in an appeal court overturned Lee’s conviction. The reason given was that she had meant well. Further, she did not even have to give back her illegal millions. The judge ignored the fact that the government office form requires each office holder to answer in writing the question of whether one holds dual citizenship or not. On three separate occasions, for three separate forms and terms in office, Lee omitted answering this question; she left it blank. One can claim oversight once, but to do this three times indicates a pattern. Surprisingly KMT officials checking it also somehow missed the omission each and every time. Lee is free, but she lives with a sword of Damocles over her head; some day, some time, some where, a person with access to US passport renewals, could possibly produce a copy of her application for renewal of US passport while she was in office; thus condemning her for perjury, jail time and a return of illegal money.

The trial of Chen Shui-bian in Taiwan is proving to be a morality play in which actors, participants and observers all, even some DPP, seem to need a surrogate scapegoat (Chen). Of all the thousands involved from Taiwan’s past till now, only Chen has been singled out and dissected. Perhaps, many hope that some conviction, even if wrongfully gained will alleviate all the past, but it will not. The dilemma is that Chen’s trial exposes so much of that past including a loose, corrupt system that would take a horrendously long time and effort to correct. Further, Ma needs Chen as a whipping boy to deflect from that sordid past; even China wants Chen punished and disgraced because he represents Taiwan as Taiwan and not the one China fantasy of the KMT. And the US? The US is indirectly involved because people like Chen pose a threat to their dilemma of supporting democracy but not wanting to give up using Taiwan as a pawn against China. Has Chen received fair treatment under the law? Does the treatment and/or punishment outweigh the crime? Will Chen’s death only satisfy some? For Chen’s case to be solved with justice is a challenge to all. Somewhere in the wings, a voice cries out, “Do you really want answers? Do you really want the truth? You can’t handle the truth.” Can Taiwan?

Part I of III
Monday April 09, by Jerome F. Keating Ph.D.

Other writings can be found at http://zen.sandiego.edu:8080/Jerome