Sat, Oct 07, 2000 page3

• Reforms sought on issuance of search warrants

  LEGAL ISSUE After two recent controversial searches, legislators say that the power to issue search warrants should belong to court judges, not prosecutors judges, not prosecutors

  • By Stephanie Low / STAFF REPORTER
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  Lawmakers yesterday proposed a bill intended to transfer the right to issue search warrants from prosecutors to judges in order to protect civil rights.

  The move comes in the wake of heightened debate on civil and human rights issues, following recent searches by prosecutors of the Legislative Yuan's confines and the China Times Express (中時晚報) newsroom.

  The proposed change, which would be achieved by revising the Criminal Prosecution Law (刑事訴訟法), was jointly raised by Taiwan Independence Party Legislator Lee Ching-hsiung (李慶雄), as well as DPP legislators Chiu Tai-san (邱太三) and Chen Chung-shin (陳忠信).

  The legislators said beyond alleged infringement of parliamentary dignity and press freedom, the two cases had highlighted a basic defect in the judicial system, in which prosecutors are their own judges when deciding whether to carry out searches.

  "We need checks and balances designed to prevent the abuse of judicial sanctions (強制處分)," Lee said.

  Lee said Taiwan should catch up with democratic countries, where prosecutors and police are required to file for search warrants from the courts before carrying out searches.

  The court must then consider the validity of the action in deciding whether to issue the warrant.

  In a move that has prompted doubts as to the validity of such searches, prosecutors and investigators on Tuesday searched the newsroom of the China Times Express and the homes of two of the paper's reporters.

  The action was taken after the paper partially published a transcript of interviews by two key suspects and a witness in the corruption scandal involving National Security Bureau official Liu Kuan-chun (劉冠軍), which the prosecution argued contained confidential information.

  Despite the paper's written statement that it did not possess a copy of the transcript, the prosecutors insisted on conducting the search in an effort to prevent publication of the rest of its content.

  Nothing was found in the search, but the prosecutors maintained that their action was absolutely legal and necessary.

  Sue Wang (王時思), executive general of the Judicial Reform Foundation (民間司法改革基金會), who supports the legislators' move, said under the current system it was unlikely that any search carried out by prosecutors could be deemed "illegal" because they issue their own search warrants.

  "Prosecutors issue the search warrant and prosecutors conduct the search. How could they possibly break the law in a search?" Wang said.

  In addition to lawfulness, the validity and necessity of the action are what matter in a search and should be judged independently by the courts, Wang said.

  As shown in the China Times Express case, Wang said it was not justified to carry out searches to "prevent the publication" of something in which the prosecutors had insufficient evidence to believe in the first place.

  The situation was similar to the search -- in which nothing was found -- of the office of KMT Legislator Liao Hwu-peng (廖福本) in August for his alleged involvement in selling bogus stock certificates, Wang said.

  Nigel Lee (李念祖), a professor of constitutional law and a practicing lawyer, said searches should be launched with discretion because they could always lead to infringement of fundamental rights including personal liberty, property right, privacy, residence right and, in the China Times Express case, press freedom.

  Minister of Justice Chen Ding-nan (陳定南), however, was not supportive of the legislators' proposal.

  Chen said prosecutors would be likely to miss the opportunity to seize evidence crucial to an investigation if search warrants were required to be issued by the courts.
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