20130510 Lin Yi-shih case sets an unhealthy precedent
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Lin Yi-shih case sets an unhealthy precedent

By Wu Ching-chin §d´º´Ü

On Tuesday last week, the Taipei District Court announced its verdict in the corruption trial of former legislator and Executive Yuan secretary-general Lin Yi-shih (ªL¯q¥@).

The court found Lin not guilty on all charges of corruption filed against him by the Supreme Prosecutors¡¦ Office Special Investigation Division (SID). The only corruption-related offense Lin was found guilty of was failing, as a public official, to account for the source of an increase in his personal wealth. It made Lin the first person to be found guilty of this offense in Taiwan.

In April 2009, the legislature amended the Anti-Corruption Act (³g¦¾ªv¸o±ø¨Ò), adding Article 6-1. This article stipulates that when public officials¡¦ wealth is found to have increased in a way that is inconsistent with their normal income, they are obliged to account for the anomaly. If they refuse to account for it, give a false account or are unable to provide a credible explanation, they can be handed a maximum sentence of three years in prison.

The purpose of this provision is to prevent and fight corruption by penalizing perpetrators at an early stage. However, the wording of this article is such that only defendants suspected of an offense under the Anti-Corruption Act are obliged to give an account of inconsistent increases in their personal wealth and it is up to prosecutors to decide whether the defendant has to provide an explanation. Under such circumstances, it is hard to avoid having situations in which suspects are treated differently depending on who is involved.

In November 2011, the legislature sought to resolve this problem by further amending the law. Besides raising the legally prescribed penalty from three years in prison to five, the amendment extended the range of people to whom the act applies to include not just those charged with corruption, but also those accused of gaining from illegal activities such as prostitution, pornography, gambling, organized crime, human trafficking, narcotics, smuggling and firearms.

Paragraph 10 of Article 6-1 of the act makes it clear that a public officials who abuses ¡§the power given by one¡¦s official position, the opportunities and means thereof¡¨ to commit a criminal offense and whose wealth is found to be inconsistent with their normal income are obliged to explain the anomaly.

However, although the range of situations covered by the act has been extended, whether anything will be done still depends on prosecutors¡¦ willingness to investigate. In other words, when a serious incident of corruption is discovered and a public official is required to explain the source of his or her personal wealth, prosecutors may ignore the felonies that lie behind the anomaly and merely charge the person with having assets that cannot be accounted for. The Lin case shows exactly how this kind of situation can happen.

The SID has long known from its investigations that the amount of money involved in Lin¡¦s case is much more than the NT$63 million (US$2.13 million) he has admitted to having. Prosecutors should try to find out whether this unaccounted-for money is unlawful income derived from other activities.

However, the court, failing to recognize the characteristics of this kind of crime, did not instruct prosecutors to investigate whether other, even more serious offenses had been committed. Instead, it handled Lin¡¦s case merely in terms of the possession of unaccounted-for assets.

This not only let the defendant get away with a relatively light sentence, but it also allowed the charge to function as a shield that lets officials evade the more serious charge of corruption.

The verdict in the Lin case sets a legal precedent that Taiwan would be better off without.

Wu Ching-chin is an associate professor in the Department of Law at Aletheia University.

Translated by Julian Clegg

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