The public’s patience with the justice system has been severely tried of late, and the recently exposed corruption scandal allegedly involving several High Court judges has pushed things to the boiling point. The idea of establishing some form of anti-corruption agency has been raised on several occasions, and it has just been brought up again.
Only a few days ago, the government announced it would set up a special unit under the jurisdiction of the Ministry of Justice. Everyone wants and expects something to be done about corruption, but only time will tell whether this latest initiative will ultimately deliver. However, one thing is certain: If the government wants the anti-corruption unit to be successful, it must first look very carefully at the inherent problems in the current system.
Presently, the institution on the front line of the fight against corruption is the Department of Government Ethics (DGE), which has a presence within all administrative departments and falls under the ministry. These offices are responsible for preventing corruption, as well as uncovering, reporting and prosecuting any cases that do arise.
Unfortunately, it has too little authority and too frequently pressure from higher up in the hierarchy restricts its operational independence. Often it has to be satisfied with catching the small offenses and letting the big ones get away. Also, since it is not judiciary police it is only permitted to conduct spot checks and are not authorized to investigate the judiciary. Civil servants under investigation, especially the higher-ranking ones, are not even obliged to cooperate. When the DGE does discover a case of suspected corruption, it has to turn it over to the ministry’s Bureau of Investigation (BOI). The DGE has never been able to live up to its potential as a result.
Although the bureau does have the right to investigate the judiciary, it is still under the ministry’s jurisdiction and must comply with directives from prosecutors. It is also subject to many restrictions on what it can and cannot do.
Another problem is that corruption is only one of the many crimes the bureau is expected to investigate, so it is impossible to concentrate solely on corruption cases. The Control Yuan only has the authority to impeach officials and the only body that can discipline them is the Commission on the Disciplinary Sanctions of Functionaries. If the Control Yuan does discover any evidence of criminal activity it must turn the case over to the public prosecutors. In addition, current legislation places no restrictions on Control Yuan members to prohibit them from investigating cases under ongoing investigation or review. As a result, they could influence the way prosecutors pursue their case by issuing corrective measures in connection to ongoing cases.
The only way we can guarantee an effective anti-corruption body is to have a special investigations unit that reports directly to the supreme prosecutor-general and consists of prosecutors who not only have the authority to discipline offenders, but who are high enough ranking to be immune from outside interference. This body would need to be a sparsely staffed unit consisting of non-permanent members whose remit would be limited to high level corruption, not general, everyday forms of corruption.
However, this could be an impediment to the prevention of corruption. Bribery, for example, pervades all civil services and is not restricted to judges. It would be impossible for such a small unit to cope with such a wide-reaching problem.
The current anti-corruption effort is a clear case of too many cooks spoiling the broth. Authority is not concentrated in one unit — instead the units responsible are mired in a conflict of authority. Clearly, in order to concentrate resources, there is a need to establish a unit tasked exclusively to tackle corruption.
The Cabinet’s plan seems to be to amalgamate the DGE into the proposed anti-corruption commission and place this body under the ministry’s jurisdiction. It would be able to investigate any corruption case and would operate in the capacity of judicial police — the first anti-corruption unit of its type in Taiwan. Unfortunately, there are still quite a few problems with this.
First, there is an important difference between the proposed unit and its most likely blueprint, Hong Kong’s Independent Commission Against Corruption (ICAC). The ICAC reports directly to the chief executive of Hong Kong and is therefore completely independent of civil services. By placing the proposed unit under the ministry, it would be subject to directives from prosecutors and would also be vulnerable to pressure from the minister of justice and the premier. This would raise serious questions about its independence.
Second, there is already another body — the BOI — charged with investigating corruption and if it were not stripped of this authority clashes would be unavoidable.
The only sensible and effective way forward is to create a single unit concentrated under one roof with the authority to prevent, investigate and prosecute corruption, and to guarantee its overall independence. It is important that the unit would be high-level and the staff stringently vetted.
However, even more critical is that the unit must be the only authority to carry out corruption investigations and its role must be clearly defined, so that it does not overlap with other bodies, thereby avoiding conflicts.
If these systemic issues are not taken care of, and the unit is established purely to allay public anger over corruption, I’m afraid this initiative will only compound an already complex picture, which will do nothing to help the fight against corruption.
Wu Ching-chin is an assistant professor in the Department of Financial and Economic Law at Alethia University.
TRANSLATED BY PAUL COOPER
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