Much public attention has focused on the Taipei Dome and a number of other build-operate-transfer (BOT) projects, which are a way for governments to encourage private-sector participation in public infrastructure development.
A perusal of declassified Taipei City Government documents brings to mind the case of former minister of transportation and communications Kuo Yao-chi (郭瑤琪), who was accused of wrongdoing while promoting private-sector participation in the reconstruction and operation of the Taipei Railway Station building.
Kuo, who was devoted to her duties, handled the project in an open and transparent manner, yet was found guilty of corruption, while nothing has been done about those who shared out the spoils under the guise of “maintaining secrecy.” This is a case of the judiciary hobbling the BOT process.
BOT is transparent way of attracting business participation. Legislation encouraging private-sector participation must be enacted in a transparent manner.
If potential bidders have doubts before BOT projects are announced or when they receive the documents, they could ask the authority heading the project for clarification.
This would ensure that potential bidders understand the information, so that businesses can assess their own competence and withdraw of their own accord if necessary, thus avoiding disputes.
To promote the reconstruction and operation of the Taipei Railway Station and having obtained the agreement of the Taiwan Railways Administration’s management at a regular ministerial board meeting, Kuo openly resolved that the authority in charge should invite all the potential bidders to an open meeting at which interested businesses could ask questions related to the project.
The difference between the open and transparent nature of promoting private-sector participation and the secrecy that is necessary to prevent corruption in public procurement cases must be clarified.
Leave aside for the moment the failure of the court to consider the contradictory nature of the accounts given by the witnesses regarding the alleged bribery in Kuo’s case, as well as the courts’ abuse of the power of free appraisal of the evidence in making assumptions about the witnesses’ alleged gift of money to Kuo, which contravened the principles of evidence, logic and experience.
Also set aside the question of whether the court failed to apply the principle of the presumption of innocence until proven guilty.
Just consider how after Kuo was found not guilty in the first and second trials, in the third trial the previous verdicts were reversed and Kuo was sentenced to prison on the grounds that by holding a public explanatory meeting during the period of open invitation to bid, the accused had helped Nan Ren Hu Entertainment Co (南仁湖) obtain information about the submitted tenders so it could cut its proposed budget for the project.
The judges involved were confused about the respective mechanisms for promoting private-sector participation and government procurement cases.
No aspect of the announcement regarding the project was altered after the authority in charge invited Nan Ren Hu to attend the explanatory meeting.
Furthermore, Nan Ren Hu did not make a bid for the project. How could the company have cut its proposed budget for the reconstruction project if it did not even submit a tender?
Cases involving the promotion of private-sector participation should consult with experts and be judged by specialized courts or juries.
The promotion of private-sector participation is a new field of knowledge.
The judges appointed to try this case lacked the expertise required, so if they were unwilling to seek the advice of specialized departments during the course of the trial, or a constitutional interpretation from the Council of Grand Justices — and in the absence of specialized courts or a jury system — even if they make arbitrary judgements that land innocent people in jail, they do not have to bear any legal liability for doing so.
This is why the judiciary comes in for so much criticism and why the public takes a very dim view of the quality of judicial verdicts.
Judicial personnel are still erroneously using BOT cases as teaching materials when delivering lectures about government procurement cases.
No wonder the majority of law-abiding public servants have no choice but to be cautious, while those lacking in experience request to be transferred.
It is no surprise either if a minority of lawbreakers get away with using the pretext of secrecy to conceal criminal activities.
Peng Kuang-hui is a professor in National Taipei University of Technology’s Department of Architecture.
Translated by Julian Clegg
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