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Abolition is the only
option for SID
By Joseph Lin 林永頌
Article 86 of the Judges Act (法官法) says that prosecutors should serve the public
interest by maintaining social order and must act beyond political partisanship,
uphold the Constitution and the law, and carry out their prosecutorial duties
fairly, objectively, diligently and prudently. The prosecutor-general is the top
official who has supreme authority over all the nation’s prosecutors, so he
should set a good example.
If a legislator is suspected of being involved in improper lobbying, it should
be dealt with through the Legislative Yuan’s self-disciplinary system. If
Cabinet ministers or prosecutors are suspected of doing the same thing, they
should be monitored and investigated by the Executive Yuan or the Ministry of
Justice respectively.
The Special Investigation Division (SID) of the Supreme Prosectuor’s Office is
led by the prosecutor-general, currently Huang Shih-ming (黃世銘). The SID is only
responsible for conducting criminal investigations and has no power of
administrative oversight.
However, it has conducted administrative investigation. Huang has tried to
justify its actions by claiming that the division started investigating the
improper lobbying case because initially it could not tell whether it would be a
criminal investigation or an administrative one.
If it is a criminal investigation, then the prosecutor-general could proceed
because he is the top prosecutor and he is not subordinate to President Ma Ying-jeou
(馬英九). If it is an administrative investigation, the prosecutor-general and the
SID have no authority. The president is not responsible for administrative
oversight either.
What grounds did Huang have for making two nighttime visits to the Presidential
Office to tell Ma about the case of alleged improper lobbying by Legislative
Speaker Wang Jin-pyng (王金平)?
The absurdity does not stop there. The SID closed the case on Sept. 5 because it
found no criminal wrongdoing and administrative investigations are not its
responsibility. However, Huang held a press conference the next day to announce
the results of an “administrative investigation.”
Moreover, the evidence he presented was incomplete, he skipped proper legal
procedure and announced the findings on the case as if it were a court verdict.
For prosecutors to intervene in an administrative investigation is a breach of
the principle of separation of powers as laid out in the Constitution.
The case that the SID closed on Sept. 5 was a criminal one and remained under
investigation until that date. Did Huang not contravene the principle that
investigations should be kept confidential when he reported to Ma on Aug. 21 and
Sept. 1? In doing so, he may also have committed the offense of divulging
official secrets.
There are doubts whether the case over which the SID applied for a warrant to
tap Democratic Progressive Party caucus whip Ker Chien-ming’s (柯建銘) telephone
actually had anything to do with Ker. Whether Taiwan High Prosecutors’ Office
Prosecutor Lin Shiow-tao (林秀濤), who was in charge of Ker’s case, was subject to
lobbying is a question that requires further investigation. If she was, then
only she bears administrative responsibility for it.
While reporting on the case to lawmakers in the Legislative Yuan, Huang said
that Lin may have contravened Article 125 of the Criminal Code by knowingly
causing a guilty person not be prosecuted — in this case by not appealing a
not-guilty verdict — but it would be very difficult to gain a conviction on such
a charge and it would only be punishable by about a year in prison. It does not
meet the condition of being a serious offense punishable by three or more years
in prison, which is required for wiretapping to be approved.
It has been revealed that the SID tapped the Legislative Yuan’s switchboard
without having any evidence of criminal conduct. Furthermore, blanket phone
tapping of legislators is causing a constitutional crisis because it contravenes
the constitutional principle of the separation of powers.
By his recent words and actions, Huang has been fawning on those in power,
taking sides in the political struggle and violating the system of
constitutional government.
He has even violated the public’s freedom of communication through illegal
wiretapping, in contravention of the Communication Security and Surveillance Act
(通訊保障及監察法), and betraying the public’s trust by repeatedly telling lies.
Huang’s behavior has seriously departed from the proper role and principles of
the prosecutorial system. It is glaringly obvious that Huang is not fit to serve
as prosecutor-general. He should resign of his own accord and if he refuses to
do so the Control Yuan should set about impeaching him.
In 2006, the legislature amended the Court Organic Act (法院組織法), establishing the
SID. Article 63-1 of the act instructs the prosecutor-general to select between
six and 15 outstanding prosecutors to form the SID whose specific remit is to
tackle cases of corruption involving the state president and vice president, the
presidents of the five branches of government, heads of ministries, generals and
admirals, or other major cases of corruption, economic crime or endangerment of
public order.
The reason for this amendment was that only an outstanding team of prosecutors
who were fair and impartial, unafraid of authority and highly experienced would
be up to the task of handling corruption cases involving the president and other
high-ranking officials.
Article 63-1 says that the prosecutors serving in the SID are to be selected by
the prosecutor-general and that the SID is subordinate to the Supreme
Prosecutors’ Office. Article 66 of the act stipulates that the
prosecutor-general will serve for four years and cannot serve consecutive terms.
This may have been the best possible arrangement.
However, the SID’s handling of the case of alleged improper lobbying involving
Ker has not been fair and impartial, nor has the SID proved to be unafraid of
authority. On the contrary, it has collaborated with those in power, making it a
tool for Ma to get rid of those he considers undesirable.
The SID has failed to distinguish between criminal investigations and
administrative oversight. It has breached the principle of confidentiality of
investigations and may have committed the offense of disclosing state secrets.
Moreover, SID has illegally tapped legislators’ and prosecutors’ telephones and
even the Legislative Yuan’s switchboard, in serious contravention of the
Communication Security and Surveillance Act. Far from being a model for other
prosecutors to follow, the SID has set the worst possible example.
Considering this poor record, how can the SID be up to the job of handling cases
of corruption among high-ranking officials, as legislators expected when they
established it? If the president nominates a flunky to serve as
prosecutor-general, it is to be expected that the prosecutors selected by the
prosecutor-general will also be flunkies.
If the president or allied high-ranking officials break the law, a flunky will
not dare to investigate and prosecute them. However, when it comes to
high-ranking officials belonging to different parties or factions from the
president, such flunkies will eagerly begin to sharpen their knives, regardless
of the evidence.
When legislators decided to establish the SID, they probably did not imagine
that it would not just fail to tackle corruption among high-ranking officials,
but instead end up getting involved in political struggles, framing people and
turning the truth on its head. Surely the only thing that can be done with an
SID like this is to abolish it.
Joseph Lin is a director of the Judicial Reform Foundation.
Translated by Julian Clegg
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