Thu, Apr 02, 2009 - Page 8 News List

Proposition on assets is just asking for trouble

By Wu Ching-chin 吳景欽

After proposed legislation criminalizing the possession of assets of undeclared origin was blocked during the previous legislative session — despite the Ministry of Justice’s strong efforts to promote the bill — the ministry has now changed tack and is instead proposing legislation to criminalize non-declaration of the origin of assets for individuals charged with corruption.

But is this development the result of mature deliberation or is it a knee-jerk reaction?

A memorandum from the ministry states that in order to avoid an excessive expansion of the application of the count of possessing assets with an undeclared origin and political infighting based on individuals’ alleged possession of such assets, the scope of the proposed law is restricted to those under investigation for suspected corruption.

The memorandum also states that prosecutors will only be authorized to demand that a defendant declare the origin of their assets when there is an abnormal increase in these assets. If a defendant refuses to offer an explanation or if the explanation is proved to be false, they will be guilty of the proposed crime of not declaring the origin of their assets when charged with corruption.

This could result in a prison sentence of up to three years, or a fine of no more than the value of the assets for which the origin is undeclared, or both.

The restrictions on the scope of these regulations seem to imply that the purpose of criminalizing the possession of assets with an undeclared origin is not that they shall be used to issue a final verdict, but, rather, that they are intended to complement investigations into more serious corruption.

This seems to mean that restricting the scope of the law may help avoid an excessive expansion of the application of the count of possessing assets with an undeclared origin.

However, restricting the law to dealing with individuals suspected of the actions described in articles 4 to 6 of the Anti-Corruption Act (貪污治罪條例) leads to problems defining the term “suspect.” Because Taiwan has no clear legal definition of the terms “suspect” and “defendant,” prosecutors have leeway to define the terms as they see fit.

A prosecutor can thus request an explanation from a defendant as he or she sees fit, and if the defendant refuses to offer an explanation, he or she will be sentenced for possessing assets with an undeclared origin, completely nullifying a defendant’s right not to incriminate him or herself.

If a satisfactory explanation is provided and accepted by the prosecutor, then the assets concerned cannot enter into a corruption investigation. The question thus arises whether a law against non-declaration of the origin of one’s assets when charged with corruption instead becomes a means of escaping corruption charges.

This can in any case be decided at will by the prosecutor, without any restrictions or counterbalancing measures. Not only will the avowed original intent of the proposed law not be met, the law also risks being abused by people with ulterior motives.

Wu Ching-chin is an assistant professor in the Department of Financial and Economic Law at Alethia University.TRANSLATED BY PERRY SVENSSON

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