20121101 Lin Yi-shih probe raises questions

Lin Yi-shih probe raises questions

By Kao Jung-chih 高榮志

The Special Investigation Division (SID) has completed its investigation into alleged corruption by former Cabinet secretary-general Lin Yi-shih (林益世), and Lin has now been formally indicted. This was not much of a surprise to anyone. Others included in the indictment were restricted to members of Lin’s family, the legal articles referred to were restricted to receiving bribes and money laundering and the division of the bribes into three smaller sums remained unchanged. Nothing new had been discovered.

The SID seems to have anticipated that this result would be questioned because it had prepared an unprecedented question-and-answer table to address any questions. This seems to have been received as an admission of culpability and the SID is now having problems addressing these concerns.

Let us first address the standards according to which the investigation has been handled. Prosecutors are not judges. For a judge to issue a guilty verdict any reasonable doubt must be dispelled. In other words, as long as there is any reasonable doubt regarding a defendant’s guilt the verdict should be “not guilty.” Prosecutors operate based on the opposite reasoning: As long as there is a possibility of guilt or reasonable doubt, they must investigate, and the bigger the case, the harder they must work to make sure that they do not leave any stone unturned.

The reasonable doubt in this case consists of the question of why the SID accepted everything the defendant said in his confession.

Lin insisted that the idea that he was “sharing the money with a lot of other people and had to deal with a lot of other people was an excuse for asking for more money and it never happened.”

Businesspeople are very careful in their calculations and if there were not at least some truth to Lin’s claims, why would they obediently pay up? In addition, prosecutors are very wary of the subterfuges of an accused so why did they accept them lock, stock and barrel this time? No wonder they tried to endorse their findings by saying Lin had passed a lie detector test. However, lie detectors are very unreliable and easy to manipulate, and proof thus obtained has long been seen as unreliable.

The investigations into the total sum of the bribes involved, where the money went and call records all seem to have been treated very lightly. The question is whether it is reasonable to assume that Lin’s mother, Shen Juo-lan (沈若蘭), really did burn US dollar bills worth a total of US$950,000. Even if the sum were all in US$100 bills it would still be 9,500 bills. How long would that take and would she really be able to flush all the ashes down the toilet? From a purely psychological perspective, faced with 9,500 US$100 bills, would she really be able to burn them all and refrain from hiding them somewhere? Just because they found some ashes and remainders of a few US dollar bills in the oven, that is not proof that all of the money was burnt.

Moving on to the application of the law, determining if Lin’s actions fell within his remit will affect which laws to apply and the level of punishment meted out. Ignoring the question of whether prosecutors have been applying double standards, that Lin’s actions did not fall within his formal duties means that the question of what should fall within his practical sphere of influence must be specified in detail. Not doing so would leave the possibility of his evading responsibility later on.

One thing that it is difficult to understand is why, since it has already been determined that Lin acted beyond his remit, the top management at China Steel Corp who acted on Lin’s instructions are not being named as principal offenders or accomplices in the corruption case. This issue has been completely ignored by prosecutors, and that is unreasonable.

Finally, the SID seems very pleased with itself because this is the first instance of an indictment using the law banning non-disclosure of assets. This article has always been bypassed by the requirement that it only applies following an investigation by prosecutors.

However, in practice, someone who is investigated by prosecutors for this offense is normally already involved in a major corruption case — as is the case with the Lin investigation — and when a sentence is meted out, lighter offenses are neglected in favor of more serious ones. As a result there is not much need for this article. Due to the many concerns at the time the law was written it has never been applied. There is indeed a risk that the SID will be laughed at for trying to claim credit for pursuing a lighter offense but keeping its blinders on over more serious ones.

It is difficult to investigate corruption cases. However, if the overall result shows an inability to move beyond the evidence provided by the accused via confession, then either the accused is very clever, or the investigators are incapable of carrying out a competent investigation.

One certainly cannot criticize those who ridicule the SID by calling it the Non-Investigation Division, instead of the Special Investigation Division.

Kao Jung-chih is a lawyer and director of the office of the Judicial Reform Foundation.

Translated by Perry Svensson