綠正妹 台獨律師 陳水扁總統是千古罪人嗎﹖ Innocent until proven guilty

I'll have to translate this into English later, please be patient

在寫今天的文章之前﹐我想了蠻久的﹐如果我寫一篇打扁文章可能會吸引很多人來看﹐如果我寫一篇挺扁文章也會有很多人來看﹐但可能原本支持我的網友會覺得我的網頁不值得再繼續看。對我個人來說﹐我寫政治評論文的就是希望會有人來看﹐希望能夠支持跟我有同樣理念的朋友﹐也更希望能說服跟我站在相反的位置的人。(鈴鐺先生除外﹐我還是覺得他很假仙) 所以如果今天寫的文章讓大家覺得我寫的是在挺扁或護扁而不能接受的話﹐我也沒有辦法﹐因為我需要寫出我的想法。

針對阿扁總統昨天對開記者會所做的道歉與說明﹐大家一片幹礁﹐也有人說阿扁總統應該要自殺謝罪﹐也有很多人要求民進黨跟阿扁總統切割﹐更多人覺得阿扁總統在這件事重創台灣本土政權﹐也會對月底的大遊行有所影響。

可是對這件事來講﹐我覺得有幾點需要討論一下﹕

第一﹐“Innocent until proven guilty” (在證明有罪之前都是清白): 在念法學院的時候念刑法課時﹐剛開始對這種美國式的說法並不了解﹐開始的想法是如果這個人無罪的話為什麼會被抓﹖另外對美國憲法跟刑法對被告的保護也無法了解為什麼要那麼周全。後來在課堂上的討論才知道相對於東方思想的“寧可錯殺一百﹐不肯錯放一人”﹐西方是“寧可錯放一百﹐不肯錯殺一人”﹐西方的思考是以個人為主﹐每一個人都有同等的權利。也所以會發展出“在證明有罪之前都是無辜”的思考。對這種 Innocent until proven guilty 的觀念在東方是極不普遍的﹐反正抓了就是有罪。但我認為在證明確實有罪之前﹐不應該自動判刑。

但是因為阿扁總統不僅是台灣卸任總統﹐更是台灣之子﹐所以他沒有這種權利要求 Innocent until proven guilty 的保護﹐這是我們對人不對事﹐我們看的不是阿扁總統“涉嫌”洗錢﹐我們眼中看到的是阿扁總統“確實”罪該萬死。

第二﹐“Ex post facto law” (追溯法): 大話今天請到徐國勇律師(前立法委員)﹐可能因為同樣是律師﹐所以思考的模式在分析的時候多少有類似﹐徐律師談到政治獻金的法律通過的時間﹐如果是事件發生以後﹐的確是不違法的。不能因為某個人今天做的事觸犯了明天通過的法律就把這個人以當時尚未存在的法律來審判。

還有就是阿扁總統從選贏台北市長選舉之後﹐很多人把他開始神話﹐這個台灣人從三級貧戶念到律師﹐後來變政治犯﹐然後做市議員﹑立委﹑市長﹑總統﹐所以我們心中把阿扁總統當神一樣在拜。可能我們不願意面對也不願意承認﹐但事實是幾十年來的國民黨教育把蔣的奉為神﹐我們在精神上長久以來就仰賴著“一個神化的人物”﹐在脫離這個神化“蔣”之後還是難逃這種“仰賴”的心態﹐而因為陳水扁代表台灣人的原因﹐代表一個台灣人終於能治理自己的國家﹐所以有形跟無形中也把阿扁總統神化了。再加上很多人把阿扁總統當做唯一能對抗國民黨的代表﹐對他的期望跟支持﹐認為阿扁總統一定要是完美無缺的﹐不能有任何一點過錯﹐這是為什麼有些人聽到這件事發生時會吃不下飯﹐難過﹐生氣﹐要求阿扁總統自殺謝罪。

再來就是我們台灣人打自己小孩給人家看的心態﹐藍營有多少A錢的至今從沒接受制裁還是在逍遙。不是說別人爛我們就該跟別人比爛﹐但是針對每一件事每一個人不能因為他是誰就主動修改標準。如果在所有的調查完成後證明阿扁總統的確有罪的話﹐他會得到應得的懲罰﹐他會讓我們大家唾棄﹐可是不應該在還沒有完成調查前就給他定罪﹐不要因為我們認為應該是聖人的一個凡人犯錯就恨他入骨﹐這樣就中了對手的計謀了。

阿扁總統不是神﹐是人都會有功有過。今天如果阿扁總統犯下罪行的話﹐法律的制裁跑不掉﹐尤其台灣的司法系統 (別忘了法院是國民黨開的) 絕對不會放過一個台灣人的卸任總統。但是道義上的問題也很重要﹐今天阿扁總統出來道歉﹐我們要看的是阿扁總統如何對所做所為負責任。對這件事的探討背後還要深入了解這種官宦文化跟神化文化。(1)有人認為阿扁總統既然坐到總統的位子﹐如果拿錢給他的話就一定會給自己好處﹐這是政治獻金﹐這是全世界都有的現象﹐美國也不例外。(2)也有更多人為了支持台灣優先的理念﹐支持阿扁總統代表全台灣的希望不求回報的給他錢﹐這是讓很多人鬱卒的所在﹐所以會覺得“你怎麼可以讓我們失望”﹖

大家都知道台獨律師一向是挺台灣﹐我對阿扁總統今天發生這樣的事情也很訝異﹐其實當我聽到“瑞士法庭主動提起調查”時還不太相信﹐因為大家都知道瑞士銀行的成功就在於他們對客戶存款的保密﹐如果瑞士銀行對連戰宋楚瑜的戶頭有多少錢都不讓我們知道的話﹐怎麼可能會主動調查他們的客戶﹖這是不合常理的事。之前拉法葉艦的案子要跟瑞士銀行討資料的時候他們根本不肯配合﹐怎麼碰到陳水扁就主動去調查並開放客戶存款資料﹖不大可能嘛!

後來聽到阿扁總統主動道歉並承認選舉經費剩餘的款項的確有被匯到海外的時候﹐我想﹐那A阿呢﹖可是在我聽到罵“阿扁去自殺啦”的話的時候﹐我實在無法贊成這樣的說法。

如果阿扁總統拿走的是政治獻金﹐是否觸法是一回事﹐道義上的責任又是另外一回事。對阿扁總統的道歉跟解釋我不認為足以把阿扁總統打為千古罪人﹐他沒有偷沒有搶﹐人家捐給他的錢 (或為了任何理由給他的錢) 被匯到海外﹐這是事實。針對阿扁總統事前是否知曉﹐相信他的人會同意他並不知情﹐而不信他的人當然會說他在說謊為自己脫罪。可是他是否說謊我們現在不知道﹐當所有的事實攤在眼前時﹐任何的謊言自然就會被拆穿。

我們應該是要針對這整件事調查﹐(1) 阿扁總統究竟在錢匯出國外的時候是否知情﹖ (2) 到底有多少錢匯出國外﹖ (3) 這些錢的來源 (4) 阿扁總統是否有觸法的嫌疑﹖(5) 錢是誰匯的﹖把事實弄清楚再下結論﹐不要因為今天主角是阿扁總統就完全喪失判斷力﹐好嗎﹖

所以在大家呼天嗆地對阿扁總統﹐對民進黨﹐對台灣本土政權哭喪的時候﹐停下來想一想﹐我們今天挺的是台灣精神﹐我們今天要努力達到的目標是台灣獨立﹐就算阿扁總統以後會被證明有罪的話都不能影響我們信念﹐不要因為一個尚未調查完成的事件﹐尚未被定罪的卸任總統就被轉變焦點。阿扁總統在過去八年為台灣國做的犧牲不要因為這件事就被抹煞﹐阿扁總統過去為言論自由坐牢﹐而他擔任總統時維護台灣國家地位﹐提昇台灣主權意識這些功勞﹐這都是事實。

在證明有罪之前都是清白的。

Background news that prompted today's article:

Chen apologizes over fund declaration

FINGER POINTING: The former president said that he did not know his wife had wired funds from previous campaigns and denied a link to the Papua New Guinea scandal

By Ko Shu-ling

Friday, Aug 15, 2008, Page 1

Wendy's commentary:

Before I pen down my thoughts today, I took a few moments to consider the consequences. If I wrote a criticizing piece on President Chen, many readers would come and perhaps in agreement. If I wrote a supporting President Chen piece, some of my old readers may be turned away. But my goal to maintain my blog is to express my thoughts, and to support those who share my views, with hope to convince those opposing my views. So if those who disagree what I am writing today, I can't help it, I have to let it out.

After President Chen's apologies yesterday, many rush to criticize him, some even suggest that President Chen should kill himself for what he did, and many ask that DPP separate from President Chen to save themselves. Some also felt strongly that President Chen's actions have severely injured the Pro-Taiwan movement, and will adversely affect attendance for the Anti-Ma protest at the end of the month.

I have a few points to make:

First, "Innocent until proven guilty", when I took Criminal Law at law school, at first I could not grasp this American concept, I thought, if the defendant was brought into court, he just have been wrong in the first place. I also did not understand why American Constitution provides so much protection to the accused. Until later when I learned that Americans would rather miss one hundred true criminal than to wrongfully convict one innocent man. This is opposite of Asian tradition, where we'd rather wrongfully convict 100 innocent men than to acquit one guilty man. Western culture places focus on individuals, every person has equal rights to another, thus it developed "innocent until proven guilty" system. This is not a common belief in Asian culture, if you're caught, you must be guilty. But I now believe that before guilt is proven, we should not automatically place guilt.

But in President Chen's situation, not only because he is Taiwan 's former President, he is the "Son of Taiwan", so he lost his rights to claim any protection under "innocent until proven guilty". This is wrong, we cannot adjust guilt/innocence standards based on who the defendant is. (President Chen has yet to be charged in any courts in Taiwan ). But a lot of people do not see that "President Chen is suspected in money-laundering", rather they believe that "President Chen IS guilty".

Secondly, ex post facto laws prevents one to be tried for violation of laws not yet in place. Mr. Shu points out today on "Da Hua News" that Taiwan 's Political Contribution Act was passed AFTER President Chen collected donations for his election funds. If the laws are passed after he received those money, he is not in violation of such laws.

Another important thing to point out is, after President Chen won the 1994 Taipei mayor election, many people idolized President Chen. He had come from poor family with no backgrounds, he became a lawyer, then a political convict, after which he became a city councilman, then a national representative in Taiwan congress, and then mayor of Taipei , then President of Taiwan. Prior to President Chen, Taiwan was always dominated by foreign forces, with Dutch, Spanish, Chin dynasty, Japanese, then KMT (Kuomintang) governance, President Chen represented a fresh start, finally a Taiwanese man is in control.

But many people idolize President Chen and places him high on the pedestal, we no longer see him as a human being but rather "God" like. The rationale of this phenomenon is simple, for the past 60 years Taiwanese are forced to worship Chiang Kai-Shit, when we finally come around to realize the killings and cruelty he did on our people, many people stopped worshipping Chiang Kai-Shit, but subconsciously replaced that "idol" with President Chen. Many just transferred the "relying" sentiment from Chiang to President Chen, it's a problem with their attitude, they needed to find a substitute "God" to worship and made President Chen into that role, because President Chen is the "Son of Taiwan", therefore he represented the only force to counter the influence of KMT. So the high expectations comes naturally, people expect President Chen to be perfect and infallible.

And then, there's this strange Taiwanese culture, somehow we like to beat our kids in front of others to show that we do discipline our kids. The Pro-China KMT has many many individuals who stole from Taiwan 's national funds, none have been prosecuted. I'm not saying that we should compare a bad apple to a bad orange to see which one is more rotten. But we must maintain the same standards for everyone. If after investigations there is proof that President Chen had violated any laws, he must be be prosecuted. But we should not place guilt on his neck before any investigation even ensued. Don't hate him and believe his guilt just because we placed him onto that pedestal in the first place.

President Chen is not God, he is a human being, and like other human beings, he makes mistakes. If President Chen is convicted of violating any laws, he will face the consequences. Especially with KMT administration, the Courts will not give President Chen any break.

There may be ethical issues to be addressed, President Chen made his apologies, we have to watch his next move to see how he takes responsibilities for any wrongdoing. There are two types of political contributions, one that is given in exchange (or hoping for exchange) of privileges or other benefits, then there is contributions that individuals just want to give the politician to show support. But here's the problem -- people feel that President Chen failed their expectations because he is suspected to have wired these funds abroad.

Actually when I first heard of the news that Swiss banks is investigating into President Chen's funds in his Swiss account, I could not believe this. Everyone knows that the success of Swiss banks come from their long tradition of secrecy. We know that KMT's officials have Swiss accounts hiding all sorts of money they stole from Taiwan , and we couldn't crack Swiss bank to give any information to help with investigations on these KMT players. It just makes no sense that Swiss banks would investigate into funds deposited in their bank, why would Swiss banks release any information regarding to their client's account? This just makes NO SENSE.

When I heard that President Chen apologized and confessed that leftover election funds were indeed transferred abroad, I thought "WTF?" But when I heard people suggesting that President Chen kill himself, I cannot tolerate this kind of extreme view.

If President Chen indeed pocketed any political contribution funds, whether it's a violation of Taiwan 's laws is one issue, another issue is his ethical liability. But I do not believe that his apologies and explanation is enough to convict him or to call him guilty. President Chen did not steal nor rob any money, it is true the funds donated to President Chen were wired abroad. Whether he had knowledge of the event aforehand is something up to debate. But we do not know whether he is telling the truth. But when all evidence are laid out for us to examine, any lies will not survive.

We have to figure out the following and thoroughly investigate into the matters. (1) Whether President Chen had knowledge before the funds were wired to abroad. (2) How much money actually left Taiwan , (3) Sources of these funds, (4) Whether President Chen violated any law, (5) Who authorized the bank to wire the funds. Before any of these are clear, let's not make any conclusion, let's not lose our judgment just because President Chen is involved, OK?

We must remember, despite all the accusations against President Chen for wrong doing, and harsh criticisms against DPP and against Pro-Taiwan movement, we cannot lose our focus on Taiwan . Our goal is Taiwan Independence, even if President Chen becomes convicted for any crime, we cannot forget our mission. Don't let one uninvestigated matter and an innocent until proven guilty former President shift our focus. President Chen had been the scapegoat for the past 8 years while he was in office, we should not forget his sacrifices for our country, he was imprisoned for pushing for freedom of speech, he maintained Taiwan's national status while in office, and he raised awareness for Taiwan Independence for us, these are truths that matter.

Remember, Innocent until proven guilty.

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