After Prosecutor-General Huang Shih-ming (黃世銘) was referred to a disciplinary committee for his part in a wiretapping row, Minister of Justice Lo Ying-shay (羅瑩雪) promptly organized an internal task force to investigate. The pan-green camp wants the legislature to set up a document request committee, the pan-blue camp called for an investigation by the Control Yuan and the Taipei District Prosecutors’ Office has started looking into whether any illegal wiretapping occurred.
While the nation is gripped by complications stemming from multiple systemic failings, the authorities have been turning a blind eye to the abuse of wiretapping powers.
This affair has implicated the entire system of constitutional government on a scale never before seen, involving the president, the legislature, political parties, the justice and prosecutorial systems and even the lawyers. Even before all this commenced, the public was confused as to who should be conducting the investigation: The prosecutors’ disciplinary committee, the Ministry of Justice or a legislative committee? As for the Control Yuan, which could not even impeach a Keelung city councilor, the less said the better.
Although the political controversy was started when President Ma Ying-jeou (馬英九) used information obtained by the Special Investigation Division of the Supreme Prosecutors’ Office through wiretapping and leaked to him by Huang, politics should not distract from the main issue — the fact that the legality or otherwise of the wiretapping is, essentially, a legal issue.
The first consideration is the possibility of resolving the legal issue in the courts and using them to conduct an impartial, professional and thorough investigation.
It is important to clarify the truth behind the surveillance process to reach a final verdict on the legality or otherwise of the surveillance. How many warrants were used? How many people were listened to? What was the reason for each individual warrant and over what time frame did they apply? If these questions can be investigated by the courts, once the information has been reviewed and the defendants’ testimonies heard, the truth behind the whole process will gradually emerge. The results should be made public, so everyone can understand.
The next pressing issue concerns how the courts are to settle the question of the legality of the wiretapping. To focus on the objective question of this legality and to avoid the process becoming drawn out, the courts should consider Article 416 of the Code of Criminal Procedure (刑事訴訟法), which states that “a subject of a ruling may file a motion to withdraw or change [certain listed] rulings to the court in charge if [he or she] disagrees with the ruling made.” Although the list does not include surveillance, judges must provide for this based upon the principle of the right to a legal remedy as prescribed in the constitutional rulings and upon the two UN human rights covenants Taiwan has unilaterally ratified.
Basically, a line needs to be drawn when it comes to judicial cases involving legislative quarrels. Why do legislators who feel they are the victims of illegal surveillance not pursue the right to legal remedy to establish the legal precedent that rulings on the legality of wiretapping should involve subsequent judicial review? After all, even Ma, whose attempts to remove Legislative Speaker Wang Jin-pyng (王金平) have been frustrated, has learned something from this experience: It is the courts that get the final say in the legal aspects of political conflicts.
Lin Yu-hsiung is a professor in the College of Law at National Taiwan University.
Translated by Paul Cooper
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