Wednesday, July 21, 2010

Lacking: Not an ICAC, but Public Trust

Lacking: Not an ICAC, but Public TrustUnited Daily News editorial Taipei, Taiwan, ROC)
A Translation
July 21, 2010

Several High Court judges are suspected of accepting bribes. President Ma has chosen this occasion to announce the establishment of an "Independent Commission Against Corruption."

Whether the Republic of China should establish an Independent Commission Against Corruption has long been a controversial issue. Opponents say that an Independent Commission Against Corruption would be redundant. Its functions would overlap with those of the existing Bureau of Investigation. This would make it difficult to ensure its independent character. Moreover, the members of any Independent Commission Against Corruption would probably be drawn from existing institutions. If the public doesn't trust our current institutions, why should they trust new insititutions consisting of members drawn from existing institutions?

Therefore reducing corruption and increasing clean government is not a matter of establishing new institutions. It is a matter of gaining the public trust. The Bureau of Investigation Special Investigation Unit does not lack the ability to fight crime. What the Bureau of Investigation lacks is the ability to resist political pressure. Critics have long accused it of "selective prosecution." The Bureau of Investigation even tipped off former president Chen Shui-bian. It leaked important information about Chen's corruption and money-laundering case to the suspect himself. How can the public possibly believe that the Bureau of Investigation is determined to fight corruption? The Special Investigation Unit consists of elite members of the prosecutorial system. Its authority is considerable. But the Prosecutor General partied with important witnesses in a case under active prosecution. How can the public believe prosecutors will not pull their punches? Despite a plethora of concerns, the public finds the idea of a separate ICAC appealing.

If one wishes to discuss the establishment of an Independent Commission Against Corruption, one can hardly avoid mentioning Hong Kong's Independent Commission Against Corruption, or ICAC. Why has Hong Kong's ICAC won the public trust? Hong Kong's ICAC has a unique operating mechanism. For example, the ICAC is not subject to the control of Hong Kong's Department of Justice (DOJ). Hong Kong's DOJ is roughly the equivalent of our [District Prosecutors Office?]. Instead, Hong Kong's DOJ and ICAC check and balance each other. The two institutions were previously under the supervision of the Colonial Governor. Now they are under the supervision of a Monitoring Committee appointed by Hong Kong's Chief Executive. Monitoring Committee members are drawn from the private sector. They are authorized to monitor individual cases. The Monitoring Committee has the right to demand a ruling from the Chief Executive on cases that the ICAC or DOJ refuse to prosecute.

Can Hong Kong's ICAC be successfully replicated on Taiwan? The Monitoring Committee probably cannot. Hong Kong's ICAC is able to maintain its independence due to its Monitoring Committee and other design features. But if this system were transplanted in our society, it simply would not work. Suppose we established a Monitoring Committee to monitor individual cases being prosecuted by an ICAC or the Bureau of Investigation. This would not ensure the independence of the ICAC. Instead, the Monitoring Committee itself would become the focus of a political struggle. Furthermore, the status of the ICAC is unrelated to how well it does its job. Consider our own Special Investigation Unit. Its head is appointed by the president. The Legislative Yuan approves the appointment of the Prosecutor General. Their status could not be any higher. Their institutional independence could not be more assured. Hong Kong's ICAC has established an excellent reputation. Our own Bureau of Investigation Special Investigation Unit, on the other hand, is not trusted by the public. Clearly the reason has nothing to do with the system as such.

Hong Kong's ICAC has won the public trust, and established an excellent reputation. In addition to wielding great power, its members have a sense of purpose and responsibility. That is the most important factor of all. But suppose that motivated by cronyism, its members tipped off suspects, the way our Bureau of Investigation has? Suppose that lacking self-restraint, its members exceeded their authority, the way our Prosecutor General has? The ICAC would hardly be effective as it is today.

Laws do not enforce themselves. Even the best system requires individuals of excellence to make it work. If is members have no consciences, everythig will come to naught. This is true for any prosecutorial authority or ICAC. This is true for the courts as well. Corrupt judges with "independent authority in trying cases" pervert the law, They are extremely difficult to monitor and sanction. If they can try cases "independently," they can engage in corruption "independently." In the end, the only thing one can rely on is the judge's conscience.

Therefore to establish an ICAC, one must first design an operating mechanism. One must concentrate on how its members are selected, and comply with professional norms. The ruling administration has announced the establishment of a new institution on the heels of the High Court judge corruption case. Perhaps its motive is political propaganda. But new institutions without a new spirit can only squander economic resources and increase institutional redundancy. President Ma's order deserves further consideration. But until his proposal has been given sufficient consideration, it would be better to go slow.

One may or may not choose to establish new institutions. But either way, the existing Bureau of Investigation and Special Investigation Unit must do better. They must improve their reputations. They must justify their existence. Perhaps the ruling administration no longer believes in the Bureau of Investigation and Special Investigation Unit. If so, why should the public believe in the ruling administration? Why should it believe that any ICAC it establishes will be better and more trustworthy, that it will reduce corruption and increase offical integrity?

不是沒有廉政署 而是沒有公信力
2010.07.21 01:40 am










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