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Corruption fight needs tough unit
By Wu Ching-chin §d´º´Ü
Monday, Jul 26, 2010, Page 8
The public¡¦s patience with the justice system has been
severely tried of late, and the recently exposed corruption scandal allegedly
involving several High Court judges has pushed things to the boiling point. The
idea of establishing some form of anti-corruption agency has been raised on
several occasions, and it has just been brought up again.
Only a few days ago, the government announced it would set up a special unit
under the jurisdiction of the Ministry of Justice. Everyone wants and expects
something to be done about corruption, but only time will tell whether this
latest initiative will ultimately deliver. However, one thing is certain: If the
government wants the anti-corruption unit to be successful, it must first look
very carefully at the inherent problems in the current system.
Presently, the institution on the front line of the fight against corruption is
the Department of Government Ethics (DGE), which has a presence within all
administrative departments and falls under the ministry. These offices are
responsible for preventing corruption, as well as uncovering, reporting and
prosecuting any cases that do arise.
Unfortunately, it has too little authority and too frequently pressure from
higher up in the hierarchy restricts its operational independence. Often it has
to be satisfied with catching the small offenses and letting the big ones get
away. Also, since it is not judiciary police it is only permitted to conduct
spot checks and are not authorized to investigate the judiciary. Civil servants
under investigation, especially the higher-ranking ones, are not even obliged to
cooperate. When the DGE does discover a case of suspected corruption, it has to
turn it over to the ministry¡¦s Bureau of Investigation (BOI). The DGE has never
been able to live up to its potential as a result.
Although the bureau does have the right to investigate the judiciary, it is
still under the ministry¡¦s jurisdiction and must comply with directives from
prosecutors. It is also subject to many restrictions on what it can and cannot
do.
Another problem is that corruption is only one of the many crimes the bureau is
expected to investigate, so it is impossible to concentrate solely on corruption
cases. The Control Yuan only has the authority to impeach officials and the only
body that can discipline them is the Commission on the Disciplinary Sanctions of
Functionaries. If the Control Yuan does discover any evidence of criminal
activity it must turn the case over to the public prosecutors. In addition,
current legislation places no restrictions on Control Yuan members to prohibit
them from investigating cases under ongoing investigation or review. As a
result, they could influence the way prosecutors pursue their case by issuing
corrective measures in connection to ongoing cases.
The only way we can guarantee an effective anti-corruption body is to have a
special investigations unit that reports directly to the supreme
prosecutor-general and consists of prosecutors who not only have the authority
to discipline offenders, but who are high enough ranking to be immune from
outside interference. This body would need to be a sparsely staffed unit
consisting of non-permanent members whose remit would be limited to high level
corruption, not general, everyday forms of corruption.
However, this could be an impediment to the prevention of corruption. Bribery,
for example, pervades all civil services and is not restricted to judges. It
would be impossible for such a small unit to cope with such a wide-reaching
problem.
The current anti-corruption effort is a clear case of too many cooks spoiling
the broth. Authority is not concentrated in one unit ¡X instead the units
responsible are mired in a conflict of authority. Clearly, in order to
concentrate resources, there is a need to establish a unit tasked exclusively to
tackle corruption.
The Cabinet¡¦s plan seems to be to amalgamate the DGE into the proposed
anti-corruption commission and place this body under the ministry¡¦s
jurisdiction. It would be able to investigate any corruption case and would
operate in the capacity of judicial police ¡X the first anti-corruption unit of
its type in Taiwan. Unfortunately, there are still quite a few problems with
this.
First, there is an important difference between the proposed unit and its most
likely blueprint, Hong Kong¡¦s Independent Commission Against Corruption (ICAC).
The ICAC reports directly to the chief executive of Hong Kong and is therefore
completely independent of civil services. By placing the proposed unit under the
ministry, it would be subject to directives from prosecutors and would also be
vulnerable to pressure from the minister of justice and the premier. This would
raise serious questions about its independence.
Second, there is already another body ¡X the BOI ¡X charged with investigating
corruption and if it were not stripped of this authority clashes would be
unavoidable.
The only sensible and effective way forward is to create a single unit
concentrated under one roof with the authority to prevent, investigate and
prosecute corruption, and to guarantee its overall independence. It is important
that the unit would be high-level and the staff stringently vetted.
However, even more critical is that the unit must be the only authority to carry
out corruption investigations and its role must be clearly defined, so that it
does not overlap with other bodies, thereby avoiding conflicts.
If these systemic issues are not taken care of, and the unit is established
purely to allay public anger over corruption, I¡¦m afraid this initiative will
only compound an already complex picture, which will do nothing to help the
fight against corruption.
Wu Ching-chin is an assistant professor in the Department of
Financial and Economic Law at Alethia University.
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