Article 86 of the Judges Act (法官法) says that prosecutors should serve the public interest by maintaining social order and must act beyond political partisanship, uphold the Constitution and the law, and carry out their prosecutorial duties fairly, objectively, diligently and prudently. The prosecutor-general is the top official who has supreme authority over all the nation’s prosecutors, so he should set a good example.
If a legislator is suspected of being involved in improper lobbying, it should be dealt with through the Legislative Yuan’s self-disciplinary system. If Cabinet ministers or prosecutors are suspected of doing the same thing, they should be monitored and investigated by the Executive Yuan or the Ministry of Justice respectively.
The Special Investigation Division (SID) of the Supreme Prosectuor’s Office is led by the prosecutor-general, currently Huang Shih-ming (黃世銘). The SID is only responsible for conducting criminal investigations and has no power of administrative oversight.
However, it has conducted administrative investigation. Huang has tried to justify its actions by claiming that the division started investigating the improper lobbying case because initially it could not tell whether it would be a criminal investigation or an administrative one.
If it is a criminal investigation, then the prosecutor-general could proceed because he is the top prosecutor and he is not subordinate to President Ma Ying-jeou (馬英九). If it is an administrative investigation, the prosecutor-general and the SID have no authority. The president is not responsible for administrative oversight either.
What grounds did Huang have for making two nighttime visits to the Presidential Office to tell Ma about the case of alleged improper lobbying by Legislative Speaker Wang Jin-pyng (王金平)?
The absurdity does not stop there. The SID closed the case on Sept. 5 because it found no criminal wrongdoing and administrative investigations are not its responsibility. However, Huang held a press conference the next day to announce the results of an “administrative investigation.”
Moreover, the evidence he presented was incomplete, he skipped proper legal procedure and announced the findings on the case as if it were a court verdict. For prosecutors to intervene in an administrative investigation is a breach of the principle of separation of powers as laid out in the Constitution.
The case that the SID closed on Sept. 5 was a criminal one and remained under investigation until that date. Did Huang not contravene the principle that investigations should be kept confidential when he reported to Ma on Aug. 21 and Sept. 1? In doing so, he may also have committed the offense of divulging official secrets.
There are doubts whether the case over which the SID applied for a warrant to tap Democratic Progressive Party caucus whip Ker Chien-ming’s (柯建銘) telephone actually had anything to do with Ker. Whether Taiwan High Prosecutors’ Office Prosecutor Lin Shiow-tao (林秀濤), who was in charge of Ker’s case, was subject to lobbying is a question that requires further investigation. If she was, then only she bears administrative responsibility for it.
While reporting on the case to lawmakers in the Legislative Yuan, Huang said that Lin may have contravened Article 125 of the Criminal Code by knowingly causing a guilty person not be prosecuted — in this case by not appealing a not-guilty verdict — but it would be very difficult to gain a conviction on such a charge and it would only be punishable by about a year in prison. It does not meet the condition of being a serious offense punishable by three or more years in prison, which is required for wiretapping to be approved.