The Ministry of Justice announced with great fanfare its latest action plan for fostering clean and honest government. This follows President Ma Ying-jeou’s (馬英九) declaration three months ago of his determination to fight corruption, something the public strongly desires. It is worth asking, however, whether the ministry will be able to achieve its goal.
In 2000, the ministry announced a plan for tackling organized crime and corruption. An investigation center targeting organized crime and corruption was set up under the Taiwan High Prosecutors’ Office, with special task forces located at district prosecutors’ offices in Taipei, Banciao, Taichung, Tainan and Kaohsiung. But the institutions had no legal standing, leading to the perception that they were shadowy outfits.
The problem was resolved in 2006, when, in the process of revising the Courts Organization Act (法院組織法), the investigation center of the Taiwan High Prosecutors’ Office became the Special Investigation Division (SID) of the Supreme Prosecutors’ Office. This promotion from regional to national level was designed to ensure the independence of the SID, as well as give it permanent status so that it could continue its work of fighting corruption and economic crime, with senior public servants the main target of investigations.
Ministry data show that 10,137 cases of alleged corruption were reported between July 2000 and April this year. Of these, 4,823 cases resulted in the indictment of 13,484 people. A total of NT$32.2 billion (US$970 million) in illicit funds was tracked down. Public servants and elected representatives accounted for 55 percent of the people charged, and 56.2 percent of the indicted were convicted. This means that an average of 45 indictments were filed each month and more than half resulted in convinctions.
From this point of view, the performance of both the former and current governments in tackling corruption seems quite good. However, if we consider that indictments were filed in less than half of reported cases, that only a little more than half of those charged were public officials and that just more than half of those charged were convicted, then the real conviction rate was 30 percent at most. It seems likely that some corrupt officials are still slipping through the net.
Some believe the low conviction rate can be attributed to the many loopholes in the law and the light penalties. In fact, however, Taiwanese law covers many different types of corruption and imposes heavy penalties. Indeed, failure to disclose the source of wealth has been added to the list of offenses classified under corruption. These things considered, poor performance in fighting corruption can hardly be blamed on flaws in legislation.
The main reason for this low conviction rate is the difficulty of establishing a quid pro quo connection — that is, proving that a favor or service provided by the accused was given in return for a payment or other gift.
An example is the recent not guilty verdict rendered in the case of former minister of transportation and communications Kuo Yao-chi (郭瑤琪). Kuo received a payment of US$20,000 during her tenure that was allegedly a bribe from a company that hoped to win a tender for refurbishment of facilities at Taipei Railway Station.
However, the court took into consideration the fact that Kuo was not in charge of the tender and deemed that her seniority alone was not proof of a quid pro quo connection between the payment received and the service provided. Based on the cardinal principle that in case of doubt, the court shall decide in favor of the accused, Kuo was found not guilty. The outcome is very different from what the majority of the public expected.
Cases like Kuo’s are by no means rare. About half or more of corruption cases conclude with not guilty verdicts because of the difficulty of proving quid pro quo action. Failure to prove guilt does not necessarily mean that the defendant did not commit a crime in accepting money. It could be that the prosecution presented a weak case.
The nation’s legal system has tried to block this legal loophole by making jobbery an offense. This offense covers officials who are not directly responsible for services rendered as well as those who are. Prosecutors should, therefore, try to gather sufficient proof to pursue a conviction for jobbery rather than bribery in cases where there is insufficient proof of quid pro quo.
Fighting corruption means getting to the root of the problem. This entails investing a lot of time, as well as human and material resources. It is not something that can be achieved in the short term, so it cannot be the first priority for those in government. However, they should at least think of how they could improve the system by making sure there are sufficient legal deterrents in place.
What counts is not how many types of corruption are there as defined by law or whether penalties are stiff enough. Effective litigation is a much greater deterrent than heavy penalties. The onerous responsibility of effective litigation rests upon the shoulders of prosecutors. The question of how to improve prosecutors’ ability and effectiveness in the litigation process is probably the most important factor in tackling corruption.
Corruption cannot be eradicated by a declaration or a report. Even the best written report cannot conceal the existence of corruption, nor can it satisfy the public desire to see it stamped out. Unless the overall effectiveness of prosecutors’ litigation is improved, however stiff the penalties and however many reviews and reports are published, the goal of a cleaner and more effective government will remain beyond reach.
Wu Ching-chin is an assistant professor at Alethia University’s Department of Financial and Economic Law.
TRANSLATED BY JULIAN CLEGG
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