Professors, associate professors and research staff from universities across Taiwan are suspected of using false receipts to claim research subsidies from the National Science Council.
To prevent local prosecutors’ offices from each handling such cases in different ways, Prosecutor-General Huang Shih-ming (黃世銘) has told them to treat professors from government-run universities as public officials as defined by the Criminal Code, and dozens of professors have been indicted on that basis.
However, Huang’s interpretation ignores the fact that the Criminal Code has been amended, and this is likely to prove problematic if professors from private universities are found to have committed the same crime.
The prosecutor’s view that professors at government-run universities should be treated as public officials diverges significantly from an amendment made to the Criminal Code in 2005 which intended to narrow the category of people defined as public officials. The wording of Article 10, Paragraph 2 of the amended code highlights this and defines public officials as “those who, empowered with legal function and power, …[are] engaged in public affairs in accordance with law.”
Professors at government-run universities do not have any legal functions or powers and are therefore not public officials by definition.
Huang has given his opinion, based on an unspecified judgement made by the Supreme Court, that professors at state-run universities are public officials as defined by Article 10. Under this view, if the professors are suspected of having claimed reimbursement for inflated expenses, they could be indicted on charges of corruption.
When academics apply for research funding from the National Science Council, that funding comes from the state, but academic research is a voluntary undertaking and does not involve any kind of official power. Treating it as a kind of legal function or power ignores the Criminal Code’s amendment. It also implies that funding for academic research is an implement of state rule, suggesting a vestige of authoritarian thinking.
This is not just absurd, but also an infringement on academic freedom.
What should be done if professors at private universities are suspected of misconduct? The authorities may decide that such schools are not state-run and the professors there are not public officials. They could then only be indicted on relatively trivial charges such as breach of trust, fraud or forgery. That would go against the principle of equality.
On the other hand, the authorities may decide that professors at private universities should also face charges of corruption. That would involve an excessive widening of the definition of “public official” and would leave the original intention of the Criminal Code’s amendment, which attempts to limit the scope of this definition, in ruins.
The prosecutor-general has not made a universally applicable interpretation regarding this point. If he does not, prosecutors in different places will come up with their own interpretations and each do as they see fit.
This is why Huang’s view has met with a backlash from academics. Even Minister of Justice Tseng Yung-fu (曾勇夫) is questioning whether it is in keeping with the doctrine of nulla poena sine lege, which holds that people can only be punished for doing something that is specifically forbidden by law.
This is the kind of thing that happens when prosecutors make legal interpretations that are divorced from reality. Instead of providing a solution, it just causes more problems and controversies.
Wu Ching-chin is an associate professor in the Department of Law at Aletheia University.
Translated by Julian Clegg