It has been reported that the Chinese Nationalist Party (KMT)-People First Party (PFP) alliance proposed to establish a system with "independent prosecutors," whose sole duty is to investigate and prosecute wrongdoings by the president, vice president and political appointees. Perhaps the US' failure in this regard can shed some light on this.
US independent counsel Kenneth Starr became famous around the world in the impeachment case of then US President Bill Clinton, who was found to have been having an affair. But let's not forget that when Starr was appointed in 1994, the task assigned to him by the court was to investigate the Whitewater scandal that the Clintons were allegedly involved in. But the Whitewater scandal was not even mentioned in the final 445-page report after tens of millions of US dollars had been spent over more than four years of investigation. Instead, the report was full of soft-core descriptions of the extramarital sexual relationship between Clinton and the White House intern Monica Lewinsky.
Most American people found this affair too much to bear. This brought the demise of the independent counsel system. Americans thus came to this conclusion: prosecutors must not become "independent."
From a purely legal perspective, US independent counsel seems to be less "independent" than we think. Their actions should comply with the Department of Justice's general policies of criminal investigation and prosecution. If there is a justifiable cause, the attorney general of the Department of Justice can remove them from office. Approval from the court which assigned their duties is required if independent counsels intend to expand or change the scope of investigation. Also, their terms in office are limited to the period during which an individual case is being investigated or prosecuted. They are not necessarily more "independent" than Taiwan's ordinary prosecutors who are entitled to far-reaching life-tenure guarantees.
Ostensibly, these independent counsels are subject to considerable controls. This is one of the reasons offered by the US Supreme Court in its 1988 ruling that this system does not violate the constitutional principle of separation of powers, because independent counsels are not absolutely independent and relevant control mechanisms are available to prevent them from abusing their power.
However, the halo of "investigating the president" and the relatively independent system nullified all the control mechanisms. The court repeatedly permitted Starr to expand the scope of his investigation. The attorney general dared not remove Starr, even though he abused his authority, to avoid being criticized for "protecting her master." Therefore, amid a wave of opposition and criticism from the public, Starr still could act willfully in search of any misconduct of Clinton's.
When reviewing the independent counsel system, legal circles mostly believed that the problem lay with using the word "independent." It may sound good, but it is synonymous with "not subject to controls" and "unaccountable." Without superiors and pressure to seek a second term, independent counsels enjoy full power in the justice department.
Antonin Scalia, Associate Justice of the US Supreme Court, expressed a dissenting opinion in the 1988 ruling, arguing that prosecutors have in hand considerable powers -- that of investigation and prosecution -- that are hard to control by law.
If such an "independent" counsel system is established in Taiwan, making such prosecutors free from supervision by either public opinion or their superiors, then who can control them if they abuse their power?
Bruce Liao is assistant professor of law at Soochow University.
Translated by Jackie Lin
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