Article 86 of the Judges Act (法官法) says that prosecutors should serve the public interest by maintaining social order and must act beyond political partisanship, uphold the Constitution and the law, and carry out their prosecutorial duties fairly, objectively, diligently and prudently. The prosecutor-general is the top official who has supreme authority over all the nation’s prosecutors, so he should set a good example.
If a legislator is suspected of being involved in improper lobbying, it should be dealt with through the Legislative Yuan’s self-disciplinary system. If Cabinet ministers or prosecutors are suspected of doing the same thing, they should be monitored and investigated by the Executive Yuan or the Ministry of Justice respectively.
The Special Investigation Division (SID) of the Supreme Prosectuor’s Office is led by the prosecutor-general, currently Huang Shih-ming (黃世銘). The SID is only responsible for conducting criminal investigations and has no power of administrative oversight.
However, it has conducted administrative investigation. Huang has tried to justify its actions by claiming that the division started investigating the improper lobbying case because initially it could not tell whether it would be a criminal investigation or an administrative one.
If it is a criminal investigation, then the prosecutor-general could proceed because he is the top prosecutor and he is not subordinate to President Ma Ying-jeou (馬英九). If it is an administrative investigation, the prosecutor-general and the SID have no authority. The president is not responsible for administrative oversight either.
What grounds did Huang have for making two nighttime visits to the Presidential Office to tell Ma about the case of alleged improper lobbying by Legislative Speaker Wang Jin-pyng (王金平)?
The absurdity does not stop there. The SID closed the case on Sept. 5 because it found no criminal wrongdoing and administrative investigations are not its responsibility. However, Huang held a press conference the next day to announce the results of an “administrative investigation.”
Moreover, the evidence he presented was incomplete, he skipped proper legal procedure and announced the findings on the case as if it were a court verdict. For prosecutors to intervene in an administrative investigation is a breach of the principle of separation of powers as laid out in the Constitution.
The case that the SID closed on Sept. 5 was a criminal one and remained under investigation until that date. Did Huang not contravene the principle that investigations should be kept confidential when he reported to Ma on Aug. 21 and Sept. 1? In doing so, he may also have committed the offense of divulging official secrets.
There are doubts whether the case over which the SID applied for a warrant to tap Democratic Progressive Party caucus whip Ker Chien-ming’s (柯建銘) telephone actually had anything to do with Ker. Whether Taiwan High Prosecutors’ Office Prosecutor Lin Shiow-tao (林秀濤), who was in charge of Ker’s case, was subject to lobbying is a question that requires further investigation. If she was, then only she bears administrative responsibility for it.
While reporting on the case to lawmakers in the Legislative Yuan, Huang said that Lin may have contravened Article 125 of the Criminal Code by knowingly causing a guilty person not be prosecuted — in this case by not appealing a not-guilty verdict — but it would be very difficult to gain a conviction on such a charge and it would only be punishable by about a year in prison. It does not meet the condition of being a serious offense punishable by three or more years in prison, which is required for wiretapping to be approved.
It has been revealed that the SID tapped the Legislative Yuan’s switchboard without having any evidence of criminal conduct. Furthermore, blanket phone tapping of legislators is causing a constitutional crisis because it contravenes the constitutional principle of the separation of powers.
By his recent words and actions, Huang has been fawning on those in power, taking sides in the political struggle and violating the system of constitutional government.
He has even violated the public’s freedom of communication through illegal wiretapping, in contravention of the Communication Security and Surveillance Act (通訊保障及監察法), and betraying the public’s trust by repeatedly telling lies.
Huang’s behavior has seriously departed from the proper role and principles of the prosecutorial system. It is glaringly obvious that Huang is not fit to serve as prosecutor-general. He should resign of his own accord and if he refuses to do so the Control Yuan should set about impeaching him.
In 2006, the legislature amended the Court Organic Act (法院組織法), establishing the SID. Article 63-1 of the act instructs the prosecutor-general to select between six and 15 outstanding prosecutors to form the SID whose specific remit is to tackle cases of corruption involving the state president and vice president, the presidents of the five branches of government, heads of ministries, generals and admirals, or other major cases of corruption, economic crime or endangerment of public order.
The reason for this amendment was that only an outstanding team of prosecutors who were fair and impartial, unafraid of authority and highly experienced would be up to the task of handling corruption cases involving the president and other high-ranking officials.
Article 63-1 says that the prosecutors serving in the SID are to be selected by the prosecutor-general and that the SID is subordinate to the Supreme Prosecutors’ Office. Article 66 of the act stipulates that the prosecutor-general will serve for four years and cannot serve consecutive terms. This may have been the best possible arrangement.
However, the SID’s handling of the case of alleged improper lobbying involving Ker has not been fair and impartial, nor has the SID proved to be unafraid of authority. On the contrary, it has collaborated with those in power, making it a tool for Ma to get rid of those he considers undesirable.
The SID has failed to distinguish between criminal investigations and administrative oversight. It has breached the principle of confidentiality of investigations and may have committed the offense of disclosing state secrets.
Moreover, SID has illegally tapped legislators’ and prosecutors’ telephones and even the Legislative Yuan’s switchboard, in serious contravention of the Communication Security and Surveillance Act. Far from being a model for other prosecutors to follow, the SID has set the worst possible example.
Considering this poor record, how can the SID be up to the job of handling cases of corruption among high-ranking officials, as legislators expected when they established it? If the president nominates a flunky to serve as prosecutor-general, it is to be expected that the prosecutors selected by the prosecutor-general will also be flunkies.
If the president or allied high-ranking officials break the law, a flunky will not dare to investigate and prosecute them. However, when it comes to high-ranking officials belonging to different parties or factions from the president, such flunkies will eagerly begin to sharpen their knives, regardless of the evidence.
When legislators decided to establish the SID, they probably did not imagine that it would not just fail to tackle corruption among high-ranking officials, but instead end up getting involved in political struggles, framing people and turning the truth on its head. Surely the only thing that can be done with an SID like this is to abolish it.
Joseph Lin is a director of the Judicial Reform Foundation.
Translated by Julian Clegg