Wed, Feb 25, 2009 - Page 3 News List

ANALYSIS: Control Yuan’s censure of prosecutors sparks debate

WATCHING THE WATCHERS Some legal experts say the Control Yuan should not have demanded action because the cases against the former president are still open

By Shih Hsiu-chuan  /  STAFF REPORTER

The Control Yuan’s censure of two prosecutors involved in the investigation of charges against former president Chen Shui-bian’s (陳水扁) has ignited controversy over judicial interference and reflects a lack of mechanisms for dealing with judicial arbitrariness, critics said.

Among the main reasons for the corrective action taken against the prosecutors, members of the Supreme Prosecutors Office’s Special Investigation Panel (SIP), were that they had had private contact with Chen and that information from the SIP’s investigation into Chen’s activities had been repeatedly leaked to the press.

The government watchdog demanded Chu Chao-liang (朱朝亮) and Wu Wen-chung (吳文忠) be removed from all cases involving Chen, adding that it might impeach State Public Prosecutor-General Chen Tsung-ming (陳聰明) if its request was not met within the required timeframe.

“It is a violation of the Constitution for the Control Yuan to exert its power of investigation into litigation cases prior to a final and binding judgment ... the minister of justice and state public prosecutor-general should not abide by the demands of the Control Yuan, or else their acts will be a violation of the Constitution,” said Chang Wen-chen (張文貞), an associate law professor at National Taiwan University.

Chang said the limitation of the investigative power of the Control Yuan is stipulated in the Council of Grand Justices’ Interpretation No. 325, and repeated in Interpretation No. 585 and other subsequent interpretations.

“The grand justices’ position in this regard has been consistent throughout,” Chang said.

Interpretation No. 325, issued in 1993, determined whether the Control Yuan’s investigative power could be transferred to the legislature after the Control Yuan, formerly part of the nation’s congress, became a quasi-judicial organization in a 1992 amendment to the Constitution.

“Where the independent exercise of powers by the government authorities is protected by the Constitution, for example … and the dealings of investigation and adjudication in litigation cases prior to the final and binding judgments as well as the files and evidence thereof, the exercise of investigative power by the Control Yuan with respect thereto is subject to constraints from the outset,” the document states.

In accordance with Articles 95 and 96 of the Constitution and Article 26 of the Control Act (監察法), enacted in 1992, the Control Yuan has a mandate to investigate both the central and local levels of government as well as to impeach all public functionaries who break the law or neglect their duties.

This legal basis and Article 27 of the bylaw of the Control Act, which was derived from a consensus reached in negotiations between the Executive Yuan, the Judicial Yuan and the Control Yuan in 1956 following a similar controversy, were implied by the Control Yuan to justify its move.

That the Control Yuan preserved its power of investigation after the 1992 constitutional amendment was upheld by Interpretation No. 325, but constraints on the power were not shared by all.

Control Yuan member Li Fu-tien (李復甸), who initiated the censure motion, said that Article 27 of the bylaw granted exemptions from restrictions that the Control Yuan should avoid looking into legitimate cases during the period of investigation and adjudication.

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