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
【聯合報╱社論】
2010.07.21 01:40 am

高等法院爆發法官集體貪汙案，馬總統選擇此一時機宣示成立「廉政署」。

是否成立「廉政署」，一直爭議不斷。反對意見認為，廉政署與既有的調查局疊床架屋，且機關獨立性不易確保；再者，廉政署成員恐仍須由既有相關機構中調用，這些老機構若不受民眾信任，取其成員組成新機構，又如何期待能夠獲得民眾信任？

所以，肅貪倡廉，其根本不在機關的增置，而在能否獲得民眾的信任。調查局、特偵組不是沒有查案能力；但是，調查局長期以來難以擺脫政治力的控制，「選擇性辦案」的批評不斷，甚至調查局長都向總統通風報信，洩露總統貪汙洗錢案的重要資訊，民眾又如何能夠相信調查局的肅貪決心和成效？再如，特偵組集合檢察系統菁英，實力堪稱上選，但檢察總長卻和案件重要證人飲宴往來，又如何讓民眾相信辦案不會放水？正因如此，雖然有疊床架屋的顧慮，但另設廉政署的主張始終有一定的社會期待。

談廉政機構，一定要談香港的「廉政公署」。香港廉政公署因何獲得民眾信任？香港「廉政公署」有其成立背景和特殊的運作機制，例如，廉政公署不受律政司（相當於檢察署）的控制，反而是與律政司相互制衡的機構；在此二機構之上，是由過去港督、現在特首任命的「監督委員會」來監控。監督委員會成員來自民間，有權針對個案進行監督；廉政公署或律政司堅持不追訴的案件，委員會有權要求由特首裁決。

台灣能否複製香港的「廉政公署」，恐怕僅以「監督委員會」一項即不可能原樣移植。香港廉政公署因有「監督委員會」等設計，而能維持其獨立地位。但此制若放到我們的社會，就完全行不通；若我們也組成「監督委員會」來監控廉政署或調查局所辦個案，恐怕非但無益廉政署的獨立地位，反而「監督委員會」自己也成了政爭焦點。再者，廉政署的隸屬階位其實亦未必與績效有關，如我們的特偵組，其首長是總統提名、立法院同意任命的檢察總長，層級已不可能再高，機關獨立性也不可能再有更好的設計；然而，港版「廉政公署」卻能建立很高的聲譽，我們的調查局、特偵組則不受信任。原因顯然不在制度。

港版「廉政公署」獲得民眾信任，建立很高的聲譽，除了制度上賦予大權，其機構成員的使命感和責任心，應當是最重要的原因。倘若其成員和我們的通風報信的調查局長一樣徇私舞弊，或是和不知自我節制的檢察總長一樣逾越分寸，廉政公署也就不可能有任何成效了。

徒法不足以自行，再好的制度，也要優良的成員來運作；倘若機構成員不能自覺，一切均將落空。檢調機關或者廉政署如此，法院亦復如是。「獨立辦案」的法官貪汙枉法，是非常難以監督及制裁的；他能「獨立」審判，也能「獨立」貪腐，最終只能仰賴法官的節操。

因此，這次成立廉政署之議，除了運作機制的設計之外，應當置重點於將來其成員如何選派，以及如何嚴格要求遵守專業規範。政府當局在高院法官集體貪汙案爆發之際，宣示新機構的成立，或有政治宣傳的用意；但若空有新機構而無新精神，只會浪費國家資源，再養一批冗員。我們認為，馬總統的命令，或許應當視為一個有待深入研議的課題；研議如未成熟，新機構恐是寧緩勿急。

再者，不論是否成立新機構，現有的調查局和特偵組，必須拿出更多成績，贏得更高的聲譽，以事實證明自己的存在價值。如果當局對調查局和特偵組已不寄期望，試問，國人憑什麼相信一定能夠產生更優秀、更可信任的人員，來組成廉政署，從而作出肅貪績效？