Late last month, Keelung Mayor Chang Tung-jung (張通榮) was sentenced by the Keelung District Court to one year and eight months in prison, suspended for five years, for freeing a detained person and influence peddling.
The motion to impeach Chang has been presented twice to the Control Yuan, and has failed both times, setting off public protests. A motion to impeach him a third time cannot be lawfully made.
The offenses committed in this strange case involve violations of the law, but do not constitute dereliction of duty if it is to be believed that the decision to not impeach Chang is the correct response by the Control Yuan.
According to Article 2 of the Discipline of Civil Servants Act (公務員懲戒法), civil servants may be disciplined for breaking the law, for negligence and for dereliction of duty. In addition, according to Article 84 of the Local Government Act (地方制度法), local government leaders who are to be punished for having broken the law or dereliction of duty should be treated in the same way as political appointees: that is with dismissal or a reprimand.
Officials of Chang’s level are elected representatives and the decision whether to dismiss them or keep them on is determined by public opinion at the voting polls. This, however, makes it difficult to rely on other punishments such as suspension, demotion, reduced salary or demerit in order to see justice done, and it highlights the restrictions that apply to proceedings to punish elected government leaders.
Since civil servants may be punished for reasons other than violations of the law, they can still be held accountable according to Article 32 of the Discipline of Civil Servants Act even if they are not charged with a crime, if a criminal case against them has been dismissed or if they have been pronounced not guilty in a criminal court.
In other words, as long as such behavior has occurred and as long as it has impeded the execution of official duties, the Control Yuan has an obligation to initiate impeachment proceedings in order to let the Committee on the Discipline of Public Functionaries review the case without regard to any decisions made by criminal courts.
When it comes to criminal trials of civil servants for dereliction of duty in particular, courts frequently issue not-guilty verdicts due to the restrictions imposed on them by the rules on admission of evidence and other applicable legal provisions. Resorting to administrative punishment can make up for these shortcomings and help us attain the goal of clean politics.
In the case of Chang’s influence peddling, there is clear evidence of his demanding that the police officer release a person arrested for drunk driving and, after the district court issued a guilty verdict, this means that not only is this a case of major dereliction of duty, it is also a criminal offense. These are grounds for impeachment and punishment that leave the Control Yuan no room for discretion.
Despite this, the request for Chang’s impeachment has been rejected twice, and these decisions constitute major dereliction of duty and clear neglect of the letter of the law by the Control Yuan.
The implication of these decisions is that the control branch has placed itself above both the legislative and the judicial branches, and this represents a level of legal violation and dereliction of duty that is no less serious than are the offenses of which Chang has been deemed guilty.
Wu Ching-chin is an associate professor of law at Aletheia University.
Translated by Perry Svensson