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Wiretap scandal turns
into legal issue
By Lin Yu-hsuing 林鈺雄
After Prosecutor-General Huang Shih-ming (黃世銘) was referred to a disciplinary
committee for his part in a wiretapping row, Minister of Justice Lo Ying-shay
(羅瑩雪) promptly organized an internal task force to investigate. The pan-green
camp wants the legislature to set up a document request committee, the pan-blue
camp called for an investigation by the Control Yuan and the Taipei District
Prosecutors’ Office has started looking into whether any illegal wiretapping
occurred.
While the nation is gripped by complications stemming from multiple systemic
failings, the authorities have been turning a blind eye to the abuse of
wiretapping powers.
This affair has implicated the entire system of constitutional government on a
scale never before seen, involving the president, the legislature, political
parties, the justice and prosecutorial systems and even the lawyers. Even before
all this commenced, the public was confused as to who should be conducting the
investigation: The prosecutors’ disciplinary committee, the Ministry of Justice
or a legislative committee? As for the Control Yuan, which could not even
impeach a Keelung city councilor, the less said the better.
Although the political controversy was started when President Ma Ying-jeou (馬英九)
used information obtained by the Special Investigation Division of the Supreme
Prosecutors’ Office through wiretapping and leaked to him by Huang, politics
should not distract from the main issue — the fact that the legality or
otherwise of the wiretapping is, essentially, a legal issue.
The first consideration is the possibility of resolving the legal issue in the
courts and using them to conduct an impartial, professional and thorough
investigation.
It is important to clarify the truth behind the surveillance process to reach a
final verdict on the legality or otherwise of the surveillance. How many
warrants were used? How many people were listened to? What was the reason for
each individual warrant and over what time frame did they apply? If these
questions can be investigated by the courts, once the information has been
reviewed and the defendants’ testimonies heard, the truth behind the whole
process will gradually emerge. The results should be made public, so everyone
can understand.
The next pressing issue concerns how the courts are to settle the question of
the legality of the wiretapping. To focus on the objective question of this
legality and to avoid the process becoming drawn out, the courts should consider
Article 416 of the Code of Criminal Procedure (刑事訴訟法), which states that “a
subject of a ruling may file a motion to withdraw or change [certain listed]
rulings to the court in charge if [he or she] disagrees with the ruling made.”
Although the list does not include surveillance, judges must provide for this
based upon the principle of the right to a legal remedy as prescribed in the
constitutional rulings and upon the two UN human rights covenants Taiwan has
unilaterally ratified.
Basically, a line needs to be drawn when it comes to judicial cases involving
legislative quarrels. Why do legislators who feel they are the victims of
illegal surveillance not pursue the right to legal remedy to establish the legal
precedent that rulings on the legality of wiretapping should involve subsequent
judicial review? After all, even Ma, whose attempts to remove Legislative
Speaker Wang Jin-pyng (王金平) have been frustrated, has learned something from
this experience: It is the courts that get the final say in the legal aspects of
political conflicts.
Lin Yu-hsiung is a professor in the College of Law at National Taiwan
University.
Translated by Paul Cooper
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