Wed, Feb 25, 2009 page3

• 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
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  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.

  “According to the bylaw, the Control Yuan will not investigate a case pending in a law court in principle. But if a prosecutor or a judge is suspected of malfeasance or a serious violation of the law and needs immediate investigation, the Control Yuan can certainly proceed with a probe,” Lee said.

  Chang disagreed, citing the principle of constitutional democracy that says the Constitution is paramount, while the Council of Grand Justices’ interpretations are to be regarded as on the same level as the Consitution.

  Limiting the power of investigation of the Control Yuan meant that the Constitution adheres to the principles of the separation of powers and judicial independence, because having the Control Yuan look into docket cases “poses too big a risk of intervention in litigation cases,” Chang said.

  Lin Feng-cheng (林峰正), the executive director of the Judicial Reform Foundation, agreed with Chang.

  The Control Yuan’s investigative power is a “post hoc power” constitutionally.

  But he said that the way a prosecutor or judge handles litigation should be subject to review as long as the case is out of his or her hands, even before the final verdict.

  “We disapprove of the idea that cases can’t be reviewed until a final verdict is handed down, considering the length of some proceedings. There are often cases where it takes from eight to 10 years to get a result. It’s too long to wait for procedural justice problems to be addressed,” Lin said.

  Lin praised the Control Yuan for getting tough with the judicial system in a way it has not in the past, but he also criticized its own “procedural injustice.”

  The Control Yuan should not have filed a denunciation of the prosecutors because the SIP had not completed its investigation into all the cases pertaining to Chen, he said.

  It also should not have denied the two prosecutors a chance to explain themselves, he said.

  In the decade prior to 2005, before the Control Yuan was left idle for three years because of a Chinese Nationalist Party (KMT) boycott of Chen’s nomination list, the Control Yuan impeached only 30 judges, Lin said.

  “It’s an unbelievably low percentage, that 0.2 percent, or three judges out of a total of about 1,700 judges in the country, were impeached in a year,” he said.

  “It’s incompatible with the public’s perception of the judicial system,” he said.

  Lin said activists pushing for judicial reform have been hoping to establish a review system to weed out deficient judges and prosecutors because the judiciary lacks such a mechanism.

  Chen Chao-jian (陳朝建), an assistant professor of public affairs at Ming Chuan University, disagreed that the Control Yuan’s censure violated the law.

  Previous constitutional interpretations have guaranteed the independence of the prosecuting authority, Chen Chao-jian said.

  Constitutional interpretations do not shelter prosecutors who might be guilty of a violation of law or dereliction of duty from being probed, he said.

  “Even though the case is pending in court, the Control Yuan can still launch an investigation as long as the rationales behind the move conform to the principles of natural justice,” Chen Chao-jian said.
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