The controversy over a military police interrogation of a civilian and the warrantless search of his residence has exposed the military’s distance from democratic society.
However, amid the conspiracy theories surmising that the military’s audacious actions were politically motivated, attention must be paid to military officials’ lack of legal knowledge and isolationist mentality, the correction of which requires institutional change.
The military insisted that a warrantless search by military police — who also play the role of judicial police — of the home of a man who was selling White Terror era government documents dating back to the 1950s and 1960s was not against the law because he consented to the search by signing a form.
This defense is valid, since a warrantless search is permitted by the Code of Criminal Procedure (刑事訴訟法) if it is “with the voluntary consent of the person being searched.” However, the argument raises some concerns.
The Ministry of National Defense first said that the episode was “filmed all the way through.” Officials later said in the legislature that they failed to record the civilian signing the consent form.
The second point of concern is the dubious necessity of resorting to a warrantless search in this case. It was obviously not an urgent case and military police had plenty of time to apply for a court warrant.
Also notable is the possible across-the-board abuse of power exemplified in this single incident that accidentally ended up in the spotlight due to the political sensitivity of the items the military were searching for.
Many legal experts have said that warrantless searches are not uncommon, especially when “suspects” are alleged to be in possession of guns or drugs; these suspects’ rights more often than not tend to be overlooked by the public.
However, the most troubling aspect of this case is that the search and the detention were accompanied and led by military officials who are not even military police: It was discovered that the unit that gave the orders was the Ministry of National Defense Political Warfare Bureau and the “ferreting out” of the suspect was led by the bureau’s Military Security Brigade.
The Military Security Brigade, formerly the Counterintelligence Brigade, used to be part of the notorious Taiwan Garrison Command, which was responsible for uncovering suspected communists during the White Terror era.
The military’s political warfare system is responsible for information gathering and thought control. It is not surprising that the military educational officers assigned to schools — an authoritarian-era holdover — come mostly from this system.
Apart from the question of whether the system needs to employ such people — amid the military’s downsizing since 2013 — one must ask what caused their over-reaction to the White Terror documents.
Assuming there was no political motive, the problem exposed in the scandal is not just the lack of legal knowledge, but of a legal framework for handling political files.
The military said the documents should have been destroyed in 1995.
Even before the promulgation of the Archives Act (檔案法) in 2002, destroying official documents required due process, but we will never know what it was. After 2002, the transparency of political documents has continued to be blocked under the pretext of personal privacy.
Separate legislation for the handling of political files is under way and let us hope that with the Chinese Nationalist Party (KMT) — which has repeatedly blocked the bill — having lost its majority in the legislature, the first steps toward transitional justice can be taken.
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