The case in which former president Ma Ying-jeou (馬英九) stands accused of divulging official secrets has once again stirred suspicions about illegal political lobbying.
Two people involved in the official-secrets case have been indicted, and one of them has already been convicted and sentenced. Certain administrative personnel in the prosecutorial system, including the then-general counsel and prosecutor-general, no longer occupy their previous official posts. This is a rather serious case, but until now, the notion of illegal political lobbying has not been clearly defined.
Some people in the legal field say that because there are no laws to deal with political lobbying, it is not possible to investigate that aspect of the case. On the other hand, there are clear regulations and penalty provisions for divulging state secrets, so it is only possible to deal with that aspect.
If that is so, it is all the more reason to think long and hard about how to define what illegal political lobbying actually is. If the government fails to provide a definition, it might lead to serious consequences:
First, malicious politicians could at any time interfere in judicial matters. If the issue of illegal political lobbying is not seriously considered and discussed, it will amount to hinting or even openly announcing that such lobbying is acceptable or even approved of, not only legally, but also socially and culturally. Because illegal political lobbying has not been defined, it will become even more rampant.
If tacit consent is given to illegal political lobbying, it will lead to politics dominating everything else and could even evolve into political threats and hounding. If gangsters get involved, it will evolve into violence and mob rule.
Second, it will become a hotbed for corruption. Everyone knows that illegal political lobbying is a serious matter in both central and local governments. It could be said that local politics is mired in a culture of illegal lobbying.
Take for example environmental pollution. The main reason there is so much serious pollution is that the authorities are not doing their job properly. The main reason authorities do not do their job is behind-the-scenes lobbying and pressure.
In other words, illegal lobbying is a hotbed for corruption because it represents immense behind-the-scenes political and economic interests. Put simply, businesses can pay off politicians and use lobbying to ensure that their illegal activities go unpunished.
Third, the judiciary will be corroded. In theory, the judiciary, including prosecutors, is independent of the legislative and executive branches of government. If the judiciary does not stand up and clearly define what constitutes illegal political lobbying, the judiciary will be further degraded.
The state secrets case will be a landmark that shows whether the judiciary is independent or not. The purpose of clarifying what constitutes illegal lobbying is not to dig into what any particular political figure has done wrong, but to ensure that the judiciary can act independently of politics.
It remains to be seen how the state secrets case proceeds. If the prosecutors only talk about divulging state secrets and not about illegal lobbying, it will in effect turn prosecutorial officials into administrative ones, because it will imply that prosecutors — or the prosecutorial system — do not dare to touch upon the sensitive matter of illegal lobbying.
Not long ago, group two of the Preparatory Committee for the National Congress on Judicial Reform added the issue of illegal lobbying as an important agenda item. The state secrets case provides a vivid case study that is worthy of careful consideration to reach a clear definition of illegal lobbying.
This case not only has implications for the independence of the judiciary — if it is not clearly defined, the judiciary could suffer interference at any time — it will also affect the status of prosecutors and judges, because the public will be watching this case’s investigation, indictment and trial processes.
Everything prosecutors and judges say and do will not just affect the core role and status of judicial officials, but also have a far-reaching influence on the functioning of the entire judiciary.
In other words, the state secrets case is a landmark for the judiciary and will be put under a magnifying glass both now and in future.
Yang Yung-nane is a professor in National Cheng Kung University’s political science department and Graduate Institute of Political Economy.
Translated by Julian Clegg
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