Prosecutors investigating the scandal over spending on the construction of Taipei City’s Xinsheng Overpass have made several searches of Taipei City Government offices. Although prosecutors made it clear that they were searching the premises of a “third party” in relation to the case, rather than an accused, the search provoked a backlash from Taipei Mayor Hau Lung-bin (郝龍斌), who accused the prosecutors of violating the principle that the process of an investigation should not be made public.
Hau said that searching the city government offices at this time was bound to have an impact on how people vote in next month’s special municipality elections. But will the search really affect electoral prospects?
Article 122, paragraph 2 of the Code of Criminal Procedure (刑事訴訟法) stipulates that people other than the accused — ie, third parties — may be subject to searches in criminal cases and if it is deemed necessary to preserve evidence. Yet third parties are not necessarily suspects, so, in order to avoid encroachment on their rights, there is a higher threshold set for approving applications to search the premises of third parties than with the accused.
Also, if the subject of the search is a government department, prosecutors should in principle first ask the department in question to hand over the evidence that is being sought. They should only proceed to search its offices if it is really necessary. So, if normal procedures were followed, the prosecution in the Xinsheng Overpass case should indeed have asked the Taipei City Government to hand over relevant documents or other evidence, and only if city officials failed to do so would prosecutors apply for a search warrant and proceed to search the offices. Going about it in that way would be in line with the principle of proportionality.
In the case of the Xinsheng Overpass, however, there exist reasonable grounds for suspecting the involvement of senior officials who as yet remain unnamed. Given this, if prosecutors were to follow the normal procedure they could well lose the chance to preserve the evidence. Besides, the normal procedure as outlined above applies only in principle. If it is deemed necessary for some reason, prosecutors may immediately conduct a search.
Prosecutors in this case were, therefore, justified in making a search. The oddity about it is that, while making such a move, the prosecutors kept insisting that they were searching a third party’s premises and not the accused, although everyone can tell that this is not true. Why would they do that? Probably because they don’t want to be accused of trying to influence the upcoming elections. That would explain why, for the time being at least, they have not listed high-ranking city officials among the accused.
Considering the prosecutors’ painstaking efforts in this regard, it is ironic that a mayoral candidate have accused them of political manipulation. The prosecutors must be feeling very put out, but of course they have to keep that to themselves.
It is essential for prosecutors to remain impartial when investigating charges of dereliction of duty. So, when investigating a particular case, they can’t respond to instructions from their superiors, nor allow outside interference. They must carry out their duties objectively and independently. This highlights prosecutors’ role as representatives of the public interest. That being the case, prosecutors must take the initiative in investigating any case, as stipulated by Article 228, paragraph 1 of the Code of Criminal Procedure, and that is true even when the case is only based on hearsay accusations in the media. This is a legal obligation for prosecutors, not a discretionary power.
Unfortunately, in handling the Xinsheng Overpass case, prosecutors did not take timely action to preserve evidence as soon as it came to light. They were somewhat negligent in this respect. After making an initial search, it took about a month before they carried out a second search. If there really was evidence that needed preserving, the prosecution may have missed the chance to do so. Furthermore, given that prosecutors are legally obliged to investigate criminal activities, there is no room for considerations such as whether such investigations might influence elections.
If prosecutors take the attitude that they should avoid making searches in the run-up to elections for fear of being accused of political manipulation, it amounts to declaring a period of inaction. Not only does this clearly diverge from their legal obligations, it also gives those who might be inclined to do so an opportunity to hide or destroy evidence. So when people criticize the prosecution for conducting a search during an election campaign on the grounds that it might influence the election or if the prosecutors limit their own actions and hold back from using their given powers for the same reason, that is when political considerations can be said to have interfered with the investigation.
As the Xinsheng Overpass case continues to unfold, it seems that prosecutors, afraid of being accused of interference in the elections, have been overcautious in their conduct of the investigation. If prosecutors took the same cautious approach in all investigations, there would be little cause for criticism, though, as everyone knows this kid-glove approach would hardly be taken when investigating ordinary people.
By withholding their proper powers for fear of being criticized, the prosecutors have failed to live up to their role as representatives of the public interest and can hardly avoid being accused of discrimination.
Wu Ching-chin is an assistant professor in the department of financial and economic law at Aletheia University.
TRANSLATED BY JULIAN CLEGG
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