Media reports on Sunday said that the Ministry of Justice had asked the Special Investigation Panel to look into whether some media reports on the money laundering investigation into former president Chen Shui-bian (陳水扁) breached confidentiality regulations.
If reports are found to be in breach of these regulations, prosecutors will have acted in violation of the secret investigation principle and would be in breach of Article 132 of the Criminal Code, which covers disclosure of classified information other than on matters related to national security.
The secret investigation principle is outlined in the Code of Criminal Procedure. This states that prosecutors or other individuals involved in the handling of a case cannot publicly disclose information they obtain through their work on a case, unless it is required by law, is in the public interest or when doing so is deemed necessary to protect legal rights.
In order to enforce this, the MOJ promulgated a set of outlines for media coverage of criminal cases involving prosecutors and law enforcers in 2002, which requires that media coverage of investigations into criminal cases be carried out in line with the secret investigation principle.
The fourth section of this law lists seven instances when details of an investigation may be made public, with the majority of these limited to situations when a case may pose a serious risk to social order.
These seven circumstances are the only time anyone involved in an investigation is allowed to make a statement or release news on the details of a particular case. However, cases of corruption involving politicians do not fall within the scope of publicly disclosing details of a case.
The rules and regulations of Section 8 of the same outline state that if prosecutors and those involved in law enforcement break the related regulations and disclose information to the media without prior permission, they should receive demerits based on the severity of their actions.
The outline states that those found to have disclosed confidential information gained during an investigation shall be held criminally liable.
The rules also state that when leaders of various government departments and those responsible for monitoring and guiding the staff in these departments fail to ensure that their staff act in accordance with the guidelines, investigations into their failure should be carried out with those responsible being held to account for their negligence. However, to date, we have not seen a single report of anyone being punished.
This shows that the MOJ has blatantly ignored the existence of these outlines. This indicates a weakness of the rule of law and our law enforcers should take ultimate responsibility.
At most, a prosecutor can only ascertain whether an individual was involved in a certain crime. Even when an individual is found to have broken the law, the case must pass through the courts with hearings carried out between a prosecutor and the defendant’s legal team to determine whether the individual in question is guilty or not.
Therefore, compared with the hard evidence that is needed when a case reaches the final sentencing stage, what professes to be evidence gained during investigations, which alone is insubstantial in proving whether an individual is guilty or not, a lot of the time is really just “politically focused gossip.”
Its content should not be disclosed to the public by prosecutors, as this is a huge encroachment on human rights.
Tim Hsu is an assistant professor in the Department of Law at Chinese Culture University and is a practicing lawyer.
TRANSLATED BY DREW CAMERON
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