Monday, September 23, 2013

Special Investigation Unit: Collateral Damage in a Power Struggle?

Special Investigation Unit: Collateral Damage in a Power Struggle?
United Daily News editorial (Taipei, Taiwan, Republic of China)
A Translation
September 23, 2013

Summary: If the Wang Ker influence peddling case is not prosecuted, if Huang Shi-ming and the Special Investigation Unit become scapegoats of the annual September political struggles, then political influence will have undermined criminal justice. This would be worrisome for ruture prosecutorial authority. It would also be worrisome for the rule of law on Taiwan.

Full text below:

The legislature is gridlocked. The opposition DPP is demanding that Huang Shi-ming be replaced, and that the Special Investigation Unit be disbanded. This is their precondition for allowing Premier Chiang Yi-hua to ascend the podium to address policy. Prosecutor General Huang Shi-ming, who exposed the influence peddling scandal, is currently under intense pressure. He faces a grim fate, and may well be fired.

The Special Investigation Unit was established seven years ago. The Prosecutor General's "Black Gold Investigation Center" was officially established. The ruling Democratic Progressive Party and prosecutors worked to promote reform and amend the laws. They enabled the president to nominate the prosecutor general with the consent of the Legislative Yuan. They gave him a four-year term, with tenure. The purpose was to make him impervious to political pressure. He could safely deal with cases independently. But to their surprise, the Special Investigation Unit revealed that Legislative Speaker Wang Jin-pyng was busy peddling influence on behalf of Green Camp legislator Ker Chien-ming. They are now determined to eradicate the Special Investigation Unit they established back then out of "idealism." Apparently the Prosecutor General's tenure can also be abolished with the wave of a hand. What was right yesterday is suddenly wrong today. When it comes to demands for justice, the DPP blows hot and cold. Its notion of justice is as changeable as the wind.

The DPP accuses Huang Shi-ming of ordering the Special Investigation Unit to engage in "illegal wiretapping" of legislators, and of supplying this information to President Ma, to be used in political struggles. The DPP accuses him of acting like a secret police head. It says this is why it is demanding that Huang Shi-ming step down, and the Special Investigation Unit be disbanded. In fact, the prosecutors' request for wiretapping was subject to court review. The Special Investigation Unit must obtain a warrant, issued by a judge, before it can engage in wiretapping. Therefore how can the DPP claim that the wiretaps were "illegal?" If a judge issued warrants indiscriminately, or if legal norms were violated, then the process should be improved by amending the laws. One cannot simply label it illegal wiretapping.

Huang Shi-ming allegedly conveyed this information to President Ma during the dead of night. Perhaps impatience got the better of him. Perhaps he was reckless, and his actions questionable. Huang Shi-ming met President Ma and held a press conference with the Special Investigation Unit, to recommend that Wang Jin-pyng and Ker Chien-ming be disciplined by the legislature. Perhaps when presenting the case against them, he revealed a hint of Schadenfreude. Perhaps he was merely anxious becasue he feared the scandal would be swept under the rug. But to allege that he was part of an elaborate conspiracy and political struggle, to label him a secret police head, is grossly unfair.

Huang Shi-ming's investigation of the Wang Ker scandal shows his determination to investigate and prosecute anyone guilty of influence peddling, no matter how connected or powerful. If one genuinely wants to implement the rule of law on Taiwan, why would one object to a prosecutor general who aggressively fights crimes perpetrated by the rich and powerful? Unfortunately, while dealing with this unprecedented case of high level influence peddling, certain procedural steps were overlooked, and provided a convenient pretext for political intervention.

Let us return to the original event. Wang Jin-pyng's involvement in the Ker Chien-ming influence peddling scandal came to light purely by accident. The Special Investigation Unit was listening in on Ker Chien-ming over another case. They inadvertently overheard Wang Jin-pyng call Ker Chien-ming. Wang interceded on behalf of Ker in the Formosa Telecom Investment Co embezzlement case. Wang Jinping helped Ker Chien-ming look into the case. Wang learned that the original prosecutor had been transferred, replaced by Lin Hsiu-tao. Wang said Lin was one of the "Yong Bo" faction. He said the High Court Prosecutor-General Chen Shou-huang wanted him to call the Minister of Justice Tseng Yung-fu and inform Ker that "Yong Bo" said he would handle the case, and that everything would be "Okay."

This is confirmed by Lin Hsiu-tao's testimony. She said Chen Shou-huang mentioned her "budget" pressures. She said Chen advised her not to appeal the Ker Chien-ming embezzlement case. She said, otherwise she would have appealed because everyone knew it was the right thing to do. When Lin Hsiu-tao returned to her office she told her colleagues, "This is great. Now we no longer need to bother drafting an appeal." Lin Hsiu-tao's account filled in the missing spaces in the wiretap transcript.

Generally speaking, it is difficult to win a conviction in an influence peddling case. Third parties are seldom present when influence peddling is going on. Also, the verbal exchanges often invoke exalted moral principles. Those involved seldom issue specific instructions. If one lacks an actual recording of the deal going down, it is difficult to prove unless the accused confess. The Wang Jin-pyng influence peddling scandal however, includes wire tap transcripts, specific proposals, and evidence that influence peddling was accepted by the prosecutor. The evidence in this case was not easily come by.

Some argue that legislators peddling influence with the judicial branch is not punishable by law. Some argue that Huang Shi-ming's investigation was relentless, that he abused his authority, and that prosecution was difficult. They say that was why he opted for an administrative investigation. The speaker of the legislature peddling influence in the judicial yuan is no small affair. In the future, a prosecutor may be evaluating a case, the Control Yuan may be impeaching an official, or the legislature may be imposing internal discipline. Wire tap information or the prosecutor's transcripts of witness testimony, should be considered the basis for any administrative investigation, and the determination of right and wrong.

Unfortunately, Huang Shi-ming failed to take into account one important factor. Once the case is turned into an administrative investigation, the issue of administrative subordination and authority arises. If the incident involves the Minister of Justice, he must report to his superiors. Also the Executive Yuan cannot directly report to the president. A thorough administrative investigation must give the accused an opportunity to explain. But Huang Shi-ming ignored these steps. He conveyed this information in the dead of night to the presidential residence. This invited accusations that he exceeded his authority. It also put himself and the Special Investigation Unit smack dab in the middle of a political storm.

Suggestions that the Special Investigation Unit be disbanded are not unjustified. The absence of a Special Investigation Unit did not prevent prosecutors from prosecuting former President Chen Shui-bian's state affairs fund case. The key is the prosecutors awareness and determination. During the current political storm, the Special Investigation Unit may have failed to dot the "i"s and cross the "t"s. But overall, its achievements outweighed its failures. Its dissolution is something that can be discussed. But it should not become collateral damage in a political struggle.

If the Wang Ker influence peddling case is not prosecuted, if Huang Shi-ming and the Special Investigation Unit become scapegoats of the annual September political struggles, then political influence will have undermined criminal justice. This would be worrisome for ruture prosecutorial authority. It would also be worrisome for the rule of law on Taiwan.

2013.09.23 03:17 am













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