Rumor has it that, to filter out the individuals responsible for leaks, the Taipei City Government intends to ask private companies to help it carry out lie detector tests on its public servants. Above and beyond whether you think the city government should be acting as a judicial authority, this practice is sure to be seriously damaging to the rule of law and human rights.
According to Article 3 of the Act of the Establishment and Management of the Government Employee Ethics Units and Officers (政風機構人員設置管理條例), “the term ‘Government Employee Ethics Units’ referred to in this act means the various units in charge of the government employee ethics businesses at central and local organs and state-owned enterprises.”
According to Article 4, these units are not only in charge of handling corruption and malfeasance cases within the central and local governments, but are also responsible for safeguarding confidential information. However, since these “Government Employee Ethics Officers” are not “judicial police officers” — as defined by Article 229 of the Code of Criminal Procedure (刑事訴訟法) — charged with the responsibility of investigating offenses, they cannot employ forceful investigation methods in corruption and malfeasance cases, but when violations against the Criminal Code occur, investigations should be carried out by Agency Against Corruption officers, who are also judicial police officers.
Hence, when public servants in the Taipei City Government are suspected of leaking confidential information, investigations should be conducted by the city’s Department of Government Ethics.
However, it is disputable whether the department can legally inspect e-mails, social network messages or other correspondence records of the city’s public servants, as personal e-mails and messages are private information; inspection can only be done with warrants issued by judges. Even if the inspected items are communications records and information about the communications users, according to Article 11 of the Communication Security and Surveillance Act (通訊保障及監察法), only when an offense punishable by imprisonment of more than three years has taken place, and a warrant is applied by the prosecutors and issued by the judges, can an inspection be carried out. Hence, without a warrant, the inspection of personal data by the Government Employee Ethics Unit, which is not a judicial police department, is a violation of the law.
As for investigations into corruption cases, it is the responsibility of the Government Employee Ethics Unit. If the Taipei City Government’s Department of Government Ethics is incapable of finding the sources of the leaks, so be it; but to delegate this task to a private company and let it conduct lie detection tests not only lacks a legal basis, it also violates the principle that states core state powers should not be delegated to the private sector.
Moreover, there are no certification systems for examiner qualifications, lie detector equipment, or the premises on which the tests are to be carried out. Hence, there is a question as to whether private lie detection companies have the requisite proficiency. In addition, there are no objective standards for the procedures, the questions and the evaluation of the results, making it impossible to review and repeat the tests. It is therefore questionable how scientific the process is.
When the government carries out lie detection tests on public servants, the government can say it has obtained permission from its employees, but everyone knows that whoever refuses to take the test is likely to become a primary suspect and be treated unfairly. How can this be considered voluntary? Even if the employees do agree to take the test, they are already seen as suspects before the tests are performed, so it is questionable whether the test operators can put their biases aside, or whether the employees can take the tests without being more anxious than they actually are. It is unlikely that a final assessment of test results would be reliable and not just a reflection of the subjectivity of the test operators, which lowers the credibility of the tests.
Deploying such methods might, perhaps, establish an authoritative status for people in power, but is likely to severely infringe on employees’ human rights, while stigmatizing public servants and displaying distrust, which, in turn, is likely to give people a negative impression about public institutions. As such, when lie detection tests are carried out in this manner, it is not a search for truth, but, in fact, little more than a means of intimidation.
Wu Ching-chin is an associate professor and chair of Aletheia University’s law department.
Translated by Ethan Zhan
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