陳水扁 ( 阿扁札記): 又有多少人瞭解「扁案」?

How many people really know enough about “The Abian Cases”?

又有多少人瞭解「扁案」

◎ Abian-ah Diary ( 阿扁札記)

1. 敗選推給扁案毫無道理

除了獨裁國家,只要有民主選舉,絕對沒有萬年執政黨。選舉有輸贏,原因也不會單一。美國總統大選,每四年、八年或十二年政黨輪替一次,都是兵家常事。二00八年共和黨輸掉政權,麥肯不會把敗選責任推給小布希;同樣地,二000年民主黨敗給共和黨,高爾也不會將責任怪罪柯林頓。唯獨台灣,才有人會把二00八年、二0一二年本土政權敗選責任全推給「扁案」,甚至要求民進黨要和「扁案」確實切割乾淨,不該再由扁家及扁迷,一味地企圖以「扁案」緊緊綁住民進黨。

「扁案」開庭期間,獲准旁聽的民眾不到二十人,媒體的相關報導少之又少,忠實而客觀的報導更絕無僅有。我的答辯、律師的辯護,試問又有幾個人聽到、看到?大家談「扁案」,又有多少人瞭解「扁案」?「扁案」可以判無期,也可以判無罪;「扁案」可以判無罪,也可以改判十幾年的重刑,落差之大,令人髮指!

During the trials of the “Abian Cases”, only less than 20 people were allowed to attend the court hearing. The coverage by the news media was very limited. Impartial and accurate reports almost did no exist. How many people actual got to listen to the defense by myself and the rebuttal and cross-examination by my lawyers? For those who comment on “the Abian case” loosely, how many of them really know enough about “the Abian cases”? (note: “the Abian cases” is a term for all court cases against President Chen Shui Bian.) For one “Abian Case”, some judges sentenced to life in prison, but some acquitted me; for another “Abian Case”, some judges acquitted me, while others sentenced me to over 10 years in jail. With the verdicts this disbelievingly far apart, it is unacceptable.

 

2. 國務費案更一審已改判無罪

二00八年選後的「扁案」就是二00六年十一月高檢署查黑中心檢察官起訴的國務機要費案,但馬英九市長的特別費案也在二00七年二月同樣被高檢署查黑中心檢察官起訴。國務機要費是最早的特別費,只差在馬市長貪污起訴時,國民黨全黨力挺,並提名為總統候選人;國務機要費案被起訴時,民進黨採取切割策略,事後証明國務機要費和特別費都是「歷史共業」。

特別費案與國務機要費案都有使用他人發票及不實犒賞清冊的情形。馬英九將特別費存入自己的帳戶,並挪為私用,匯給太太周美青每月二十萬元、匯給姊姊馬以南三百萬元、支付女兒馬唯中在美刷卡消費,蔡守訓的合議庭以「金錢混同」及「大水庫理論」,判處馬英九無罪,但國務機要費用在機密外交等因公支出高達一億三千萬元,大於因公收入,則被蔡守訓的同一合議庭判處無期徒刑。二0一一年八月二十六日高院更一審改判貪污部分全部無罪。因國務機要費而起的「扁案」又如何會賠掉蔡英文二0一二年選舉?

The first “Abian case”, which was charged against me after the 2008 presidential election, started out with an indictment in Nov. 2006 by Taiwan High Prosecutors Office (THPO) regarding the use of presidential discretionary fund for national affairs. However, Ma, who was Taipei Mayor, was also indicted by THPO for his embezzlement of mayor discretionary fund. The presidential discretionary fund for national affairs is the earliest discretionary fund for government executives. The difference between the two cases is that when Mayor Ma was indicted, the whole KMT stood firmly behind him and nominated him as the presidential candidate for their party, while DPP chose to distant themselves by adopting a “sever-the-ties” tactic. Now, it has become clear that historically the use of both discretionary funds were governed by loosely defined rules(1).

In both cases, there was false bookkeeping with bogus receipts. Ma Yin-Jeou deposited the mayor discretionary fund into his private bank account. Each month, he wired NT$200,000 to his wife Chou Mei-Ching. He wired NT$3,000,000 to his sister Ma I-Nan. He paid for his daughter’s credit card charges with his discretionary fund. Tsai Sho-Shiun (the presiding judge) and his joint court acquitted Ma in the name of “mixed use of the fund” and “the Big Dam Theory”(2). However, the same joint court sentenced me to life in prison even though I provided proof for legitimate fund uses to conduct classified diplomatic missions, whose expenses totaled NT$130,000,000, an amount far exceeding the total amount of the presidential discretionary fund. On August 26, 2011, I was cleared for all the embezzlement charges by the first retrial ordered by the High Court.

Note(1): The congress controlled by KMT passed a new law to “forgive” all the misuse of discretionary funds by all high officials (mostly past KMT high officials), except President Chen and Vice President Lu. The law denotes the misuse as a “historically common practice”.

Note(2): “The Big Dam Theory” was invented by a pro-KMT attorney, Chen C-V, Managing Partner & Chief Counselor of Lee & Li Attorneys at Law to defend Ma. After Ma was found to deposit half of the discretionary fund to his personal bank account, he “denoted" the money he embezzled to his own foundation. “Judge” Tsai accepted his after-being-caught donation as a legitimate expense and adopted this “Big Dam Theory” to acquit Ma, claiming that as long as the total amount of legitimate expenses exceeds the total of the discretionary fund, it was legal. However, this Big Dam Theory was not applied to President Chen’s case by the very same judge even though there was no evidence that any money from the presidential discretionary fund was wired into the private bank account of President Chen.

 

3. 外交零用金案已還扁清白

「扁案」無罪定讞的外交零用金案,特偵組也是起訴侵占公物涉及貪污犯罪,可處無期徒刑,案經查明是檢察官拼湊、比附、臆測的羅織成獄,已還「扁案」的清白。

(3) I was acquitted for he charges of misuse of Diplomatic Mission Miscellaneous Fund

This embezzlement charge was pressed against me by the Special Prosecutors Panel (SPP) without merits, building on speculative and falsified evidences.

Note: The Supreme Court acquitted President Chen of guilt in US$330,000 Diplomatic Mission Miscellaneous Fund, supporting the decisions by the Taipei District Court and the Taiwan High Court on April 29, 2011.

 

4. 龍潭案屬違憲無效之判決

「扁案」除涉特別費的國務機要費外,其餘各案都是「選舉錢」,和「政治獻金」有關。差別卻是國民黨收取政治獻金是合法的選舉錢,「扁案」的政治獻金,不管是自己選總統或為黨所提名公職候選人募集的政治獻金,就被推定、擬制成有對價關係的貪污收賄。為了總統是否應到立院做國情報告,馬英九也說總統職權都規定在憲法裡頭。司法院大法官六二七號解釋釐清我國憲政體制下的總統與閣揆的職權,其中行政權概括授與行政院,總統職權以憲法及增修條文有列舉者為限。因此有關科學園區的開發、民營機構人事的決定、金融機構的合併均非總統的法定職權,「龍潭案」、「陳敏薰案」認定為總統職權判決有罪確定,顯屬違憲而無效之判決。

(4) Other “Abian Cases”, in addition to the one related to the presidential discretion fund, are all related to “campaign funds” and “political contributions”. The difference is that the political contributions accepted by KMT are considered as legitimate campaign funds, while all my campaign funds, either raised for two of my presidential elections or for candidates nominated by DPP for local elections, are considered as corruption and bribery money in exchange for equal valued political and policy favors from me. The Supreme Court Decision #627 clearly defined the powers of the President and the Premier of Executive Yuan under the current ROC Constitution. The Premier of Executive Yuan is in charge of executive functions of the government, while the President is in charge of those specific functions defined by the Constitution and Amendments. Consequently, the executive powers overseeing, for example, the development of research parks, personnel decision of private enterprises, and mergers of financial institutes are not parts of the presidential powers. In both the Long-Tiang case (1) and the Chen Min-Shin case(2), the judge reached guilt verdicts because the judge asserted that presidential powers were exercised in the decision makings of these two cases. This assertion is clearly unconstitutional and the guilt verdicts are therefore invalid.

Note(1): The Long-Tiang case is related to the development of a research park.

Note(2): The Chen Min-Shin case is related to the appointment of Chen Min-Shin as the head of Taipei 101 tower.

 

5. 一手拿扁獻金、一手與扁切割

至「二次金改案」一審以非總統職權,無對價關係的單純政治獻金判決無罪,二審則認定為總統職權,有對價關係的賄款,改判有罪並處重刑。事實上國泰蔡家及元大馬家的政治獻金都是選舉期間對外的募款,除二00四年總統大選的一億元外,其他全部用於二00一年縣市長、立委;二00二年北高市長及議員;二00四年立委;二00五年縣市長;二00六年北高市長及議員;二00八年立委等選舉的贊助款,包括二00一年、二00四年贊助台聯黨六千萬元,合共十三億元以上。對北高市長及縣市長競選經費挹注,有高達六千萬元、五千萬元、三千五百萬元、兩千萬元者。結果我拿的政治獻金是貪污的黑錢,我轉發給黨公職候選人及友黨的贊助款,似乎是應該的,不但自鳴清高,又要切割!

(5) As for the case of “Second Financial Reform”(1), I was acquitted in the first trial because the judge decided that my presidential powers were not directly involved in the decision making of the above “Financial Reform” and there were no promises of favors in exchange for political contributions from two banks involved in the “Financial Reform.” In fact, the political contributions from these two banks, Cathay Financial Holdings and Yuanta Financial Holdings, were parts of campaign contributions raised and used for election campaigns over the years. Among them, NT$100 million was used for the 2004 presidential election, while NT$1.3 billion was used for various elections, including county and city mayors elections in 2001, legislators election in 2002, 2005, and 2008, Taipie and Kaohsiung city mayors and city councilors elections in 2002 and 2006 for DPP candidates, as well as pledges to sponsor the candidates of the allied party, Taiwan Solidarity Union (TSU), in 2001 and 2004 (NT$60 million). Specifically, the campaign funds I contributed to several Taipei and Kaohsiung mayors elections were as high as NT$60 million, 50 million, 35 million, and 20 million, respectively. However, these campaign funds I raised were all denounced as corruption and bribery “dirty money” by the prosecution. Some DPP and TSU candidates, while considering the same campaign funds that I contributed to them as their fair share, attempted to sever the ties with me to distinguish themselves as “clean” politicians.

Note(1): There were bank mergers involved in “Second Financial Reform” .

 

6. 南港案與扁無關

「扁案」的南港展覽館案,和我無關,既未起訴,也沒判罪。全案余政憲、吳淑珍改判圖利罪,尚未定讞。

(6). I am not connected to the Nan-Kong Case.

I have nothing to do with the Nan-Kong Exhibition Hall case, even though it is counted as one of the “Abian cases”. Neither I was not indicted, nor was I sentenced for it. The court found Yu Chan-Shen and Wu Shu-Jen guilty of attempting to profit from others, but the case is currently under apeal.

 

7. 錢匯海外為了卸任後作外交

所謂「海角七億」經判「洗錢」有罪部分,連同蔡銘哲姊弟七千萬元,不到三億元,其餘均非「不法所得」。監察院有關宋楚瑜興票案的調查報告明確指出,政治獻金的選舉剩餘款是候選人的個人財產,縱使宋楚瑜用三、四十個人頭匯到海外三億八千萬元,亦不成立洗錢犯罪。宋楚瑜選省長未據實申報競選經費,只報了一億元,卻剩餘六億二千萬元,其中三億八千萬元匯往國外,宋辯稱是夫人理財。吳淑珍將選舉剩餘款匯存海外,是為了方便未來作為台灣國際外交及公共用途的使用,其中一筆未遭扣押的一百九十萬美元交給吳澧培資政推動機密外交之用,特偵組起訴吳澧培參與洗錢,業已獲判無罪確定。

(7). The funds I stashed overseas were intended for diplomatic missions after my presidency.

Among the so called “Oversea NT$700 million”, the court decided that only less than NT$300 million was involved with money laundering, including NT$70 million which was related to Tsai Ming-Tse and his sister. The rest of the fund is found to be legal. When the Examination Yuan investigated James Soong for his role in the Shin-Piau Money Laundering case, the Examination Yuan affirmed that unspent campaign fund legally became personal property of the candidate after the election. Because of this legal affirmation, James Soong was not found guilty of money laundering even though he wired NT$380 million to the US using the identities of thirty to forty people. James Soong, the former Governor of Taiwan, reported to the election board that he only raised NT$100 million campaign fund. In fact, his unspent campaign fund alone exceeded NT$620 million. Soong claimed that he was unaware of it because it was his wife who managed the campaign fund. My wife, Wu Shu-Jen, wired unspent campaign funds to oversea banks with an intention to use them for diplomatic missions for Taiwan and for public affairs. In fact, a sum of US$1.9 million was given to Mr. Wu Li-Pei, a former member of National Affairs Council, for classified diplomatic missions. The Special Prosecution Panel indicted Mr. Wu Li-Pei for participating in money laundering but he was acquitted of any wrong doings.

 

8. 扁案是中共的統戰分化陰謀

「扁案」的政治本質,是國共兩黨聯手打扁的政治追殺。胡錦濤於二00八年六月召開政治局擴大會議時就說,從二00六年起中國國安部就發現扁家在海外存款證據,並轉交給台灣當局;又說「根據我們掌控的情況,陳水扁很快就會被逮捕,他的被捕將給台獨勢力造成重大打擊」。二00八年七月,中共對台工作辦公室為實施《解決台灣問題的政治戰略》,定出具體方案要打擊陳水扁及其親信團夥,加深民進黨內部的思想裂痕,使民進黨長期處於政治思想的混亂狀況,極大減弱其阻碍「我們二0一二年解決台灣問題的政治動力」。特別強調陳水扁是台獨勢力最主要的政治象徵之一,打擊陳水扁不僅可以將其本人釘在歷史的恥辱柱上,而在社會道德意義上,可以給台獨意識沉重的打擊。遺憾的是,民進黨的切割派對中國以胡錦濤為首的倒扁陰謀竟然視若無睹,落入中共的統戰分化而不自知。

9. 北檢檢察官認定馬金干預司法

民視《頭家來開講》主持人謝志偉及來賓游盈隆、洪裕宏、陳立宏、王時齊,在二0一0年的節目中指述馬英九與金溥聰以政治力影響「扁案」、國民黨立委以刪除預算干預司法個案,遭到國民黨提告加重毀謗、妨害選舉。台北地檢署檢察官日前認定,當年馬英九的確在「扁案」宣判前(十一月八日)宴請司法檢察高層,並發布新聞稿指「尊重司法不等於漠視人民對於部分法官作出違背人民合理期待判決的失望與憤怒」,謝志偉等人以總統邀宴動作與聲明質疑總統干預司法,並非沒有相當理由,因而處分五位電視名嘴不起訴。益証連檢察官也肯認金馬干預司法,介入「扁案」的偵審,我才會在「二次金改案」一審無罪六天後,最高法院旋即自行判決確定「龍潭案」及「陳敏薰案」並發監執行。

(9). Taipei District Prosecutors found Ma and Kim (1) interfered with the judicial independence.

The fact that even prosecutors acknowledged the judicial interference by Ma and Kim, it becomes clear why only six days after I was acquitted for the charges of the “Second Financial Reform Case”, the Taiwan High Court unilaterally (2) reached two guilty verdicts for the “Long-Tiang Case” and the “Chen Min-Shin Case” and sent me to jail immediately without giving me rights to appeal.

Note(1): Kim was the head of KMT at the time. He is a close friend of Ma.

Note(2): The Taiwan High Court reached the guilt verdicts for these two cases in a unprecedented manner. Usually, the High Court returns the case back to a lower court for retrial if it does not agree with the verdict of the lower court.

 

10. 文革的扁案:毛澤東鬥爭劉少奇

回顧「扁案」的偵辦過程,不難聯想文革期間毛澤東清算鬥爭他內定的接班人劉少奇,儘管「劉案」與「扁案」相隔四十年,一在「中國」一在「台灣」,但兩個中國黨對付政治異己的殘酷手段並無二致。

一九六六年毛澤東在一張報紙寫上「炮打司令部─我的一張大字報」,接著紅衛兵就到被打成「黨內最大的資本主義道路和當權派」的劉宅,貼大字報、掛標語、呼口號,並將他和妻子王光美拖出去批鬥。為了置劉少奇於「永世不得翻身」的死地,江青等獲悉劉少奇在一九二九年、三十一歲時曾從事工人運動,於奉天紗廠被捕過,硬扣上「判徒、內奸、二賊」三頂大帽子。一九六七年花了五十天大查一九二九年前後的檔案資料,並未發現劉少奇所謂「叛變」的証據。遂成立專案小組,虛構劉的叛變情節,只要活著又任過職務的就列為重點「知情人」(証人),即使神智不清的人也找來作証,專案小組尚未調查,就先劃框框、定調子,先想定劉少奇「叛變自首」有罪,不是有沒有的問題,而是查出來查不出來的問題。辦案人對証人威逼恫嚇、疲勞審問、押人取供、教唆偽證,直到証人俯首就範,先後有四位証人因受不了而自殺未遂。一份劉少奇被捕後叛變的偽証就這樣出籠,二年後劉少奇含冤而死,文革結束才獲得平反。

11. 辜、杜兩人證實特偵組脅迫咬扁

「扁案」在二00八年政治追殺時,特偵組檢察官一字排開召開記者會,宣示扁案「辦不出來就走人」;接著法務部長王清峰向國民黨秘書長吳敦義報告,隨即大肆搜索、押人取供;行政院長劉兆玄更在立法院答詢時預告陳水扁很快會被收押。檢察官涉嫌教唆証人咬扁,杜麗萍在法庭坦承她的自殺未遂是檢察官以收押脅迫的結果;辜仲諒在紅火案高院庭訊時和他的律師及財務長供述,他在特偵組時,檢察官要他作不利扁的偽証,事實上紅火案的三億未流入扁家;李界木也被檢察官威脅利誘,如不配合,將讓他傾家蕩產。特偵組起訴後,承審周占春合議庭兩次無保釋放我,卻以人為方式,公然違背法官法定原則,硬給換了下來,改由判決馬英九特別費案無罪的蔡守訓合議庭審理,無視對我有利証據,甚至隱匿「奉天專案」的機密文件,鎖在保險箱不拿出來;共同被告及証人都說我有政治獻金,並有選舉剩餘款,蔡守訓硬拗說「沒有」,就是要定我的罪,先判無期徒刑再說。

(11). Koo and Du testified that they were threatened and coerced to testify against me.

In 2008, in the beginning of the prosecution of the “Abian Cases”, the prosecutors of the Special Prosecution Panel called a news conference and boldly pledged that they would resign if they could not bring a conviction of me. Following this news conference, the Justice Minister, Wang Ching-Feng, briefed the case to the secretariat of KMT, Wu Dun-I. Soon after, the prosecutors started an all-out investigation and placed witnesses under custody to build their case against me. The Premier of Executive Yuan, Liu Chao-Shien, even predicted, in response to legislators’ questioning, that I would be soon placed under custody. It is evident that prosecutors harassed and coerced witnesses to testify against me. For example, Du Li-Ting admitted, during a court hearing, that her attempted suicide was a result of harassment and threats by the prosecution. Jeffrey Koo Jr., his lawyer and CFO of his company testified in a High Court hearing of the “Red Fire Case” that the Special Prosecution Panel asked Koo to testify against me. Koo’s lawyers confirmed that Koo did not remit NT$300 million bribe money to me as accused.(1)

Lee Tsei-Mu (2) was threatened by the prosecution to testify against me or he would be severely punished to an extent that he would lose all of his estates.

After the Special Prosecution Panel brought the charges against me, Judge Chou Chan-Tsun twice released me without bail, but Judge Chou was replaced by Tsai Sho-Shiun and the joint court he assembled through an executive order, a violation of the principle of “Legally Assigned Judge” (3). Tsai Sho-Shiun, who acquitted Ma of the Mayor Discretion Fund case, intentionally ignored the evidences in favor of me and even hid an important piece of evidence related to classified documents of “Fong-Ten Project”, locking it away in a safe to keep it out of the court hearing. Despite all witnesses testified that I owned substantial unspent campaign funds and political contributions, Tsai Sho-Shium simply proclaimed “There were none!” and sentenced me to life in prison, fulfilling his guilty prejudgment.

Note(1): Koo’s lawyers admitted Koo’s false testimony in May 2011.

Note(2): Lee Tsei-Mu was convicted of accepting bribery money for the development project of the Long-Tiang Research Park. There are video recordings of his questioning and interviewing by the prosecutors in which the prosecutors clearly threatened him to provide damaging testimonies.

Note(3): Article #16 of Taiwan Constitution provides constitutional litigation right to people. This Article emphasizes that in order to protect the constitutional litigation right, the selection process to assign a presiding judge must follow an impartial and open drawing procedure. This is the core value of the principle of legally assigned judge. It is unconstitutional to remove the legally assigned judge through an executive order. Taipei District Court removed the legally assigned judge Chou Chan-Tsun and installed Judge Tsai Sho-Shuin by an executive order based on the decision of a meeting among chief justices subject to external influences without abiding by the rule of law.

 

12. 扁案何時雲開見月明

劉少奇在共產中國,再大的冤抑還能平反;在民主台灣的「扁案」,何時可以雲開見月明?「民進黨那裡努力不夠?」答案就在這裡。

陳水扁 2012. 02. 09
Chen Shui Bian, 2-9-2012

( Note:It was thanks to Mr. Jay Tu that this article translated into English. – Taiwan eNews)

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