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.

不可讓特偵組成為政治鬥爭的陪葬品
【聯合報╱社論】
2013.09.23 03:17 am

立法院空轉中，在野黨提出「撤換黃世銘」、「廢除特偵組」的要求，作為讓閣揆江宜樺上台作施政報告的條件。至此，揭露關說的檢察總長黃世銘如同千斤壓頂，面臨去留的嚴酷關鍵。

最高檢特偵組成立於七年多前，由高檢署的「查緝黑金中心」法制化變身而來。當時，執政的民進黨和檢察官改革協會合力推動修法，讓檢察總長改由總統提名、經立法院同意，並有四年任期保障；其目的，是使其無須仰政治鼻息，可以安心獨立辦案。誰料，當特偵組查獲立法院長王金平為綠委柯建銘關說，當初成立特偵組的初衷與理想立即被一筆抹殺，總長的任期保障也似乎可以瞬間勾銷。政治的昨非今是、翻雲覆雨，何其善變！

在民進黨眼中，黃世銘率特偵組對立委「非法監聽」，且提供資料給馬總統搞政爭，行徑有如東廠特務，因而點名黃世銘下台，並要廢除特偵組。事實上，檢察官監聽須經法院審核，特偵組以偵辦需要取得法官核發的通訊監察書，怎能說成「非法監聽」？若是法官核准浮濫，或法律規範不周延，那也應修法改善核准機制，不能誣指為非法監聽。

至於黃世銘連夜提供關說資料給馬總統，或顯得急躁與輕率，在體制上亦有可議之處。然而，從黃世銘不諱言他見馬總統的時點，及特偵組召開記者會建議將王金平、柯建銘送交國會自律等情形，在在說明黃世銘或許有見獵心喜之意，或擔心案件被搓掉之急躁；但要因此將他冠上陰謀政爭、東廠特務之名，顯非公允。

平心而論，黃世銘戮力追究王柯案，展現的是「無論誰關說都要究辦」的決心；從法治的進步與落實而言，難道台灣社會不樂見一位積極打擊「權貴犯罪」的總長？遺憾的是，在處理這件史無前例的高層關說案的行政處理上，也有若干程序欠周詳之處，以致政治力可以見縫插針。

回到事件原點檢視，王金平涉入柯建銘關說案之所以曝光，完全是意外。特偵組是在監聽柯建銘的另一個案件時，意外聽到王金平打給柯建銘，為其全民電通背信官司再上訴之事穿梭說項。王金平為柯建銘打聽到，原來的承辦檢察官調動，改由林秀濤接手，稱她是「勇伯」的人；並表示高檢署檢察長陳守煌要他打電話給法務部長曾勇夫，並告知柯，「勇伯」說會處理，ＯＫ了。

再對照林秀濤證詞，稱陳守煌跟她提到「預算」的壓力，提到柯建銘認為最好不要上訴，建議她不要上訴；否則，她應會上訴，以杜悠悠之口。林秀濤回到辦公室還對同事說，真好，不必寫上訴書了。林秀濤的說詞，填補了監聽的不足。

一般而言，司法關說很難成案，因為關說通常沒有外人在場，且言語上常常是「高來高去」地提點，鮮少具體指示；若沒有一翻兩瞪眼的錄音，或當事人承認，很難成立。就王金平關說案而言，不但有監聽譯文、又有具體建議及接受關說檢察官的證詞，全案呈現的證據，就關說案來說已屬難得。

由於立委關說司法並無刑責，黃世銘在查無對價關係、濫權追訴又難成立的考量下，才會改移行政調查。國會議長為立委關說司法個案，事情絕非小可；將來，無論是檢察官評鑑、監察院彈劾或國會自律，監聽資料或檢察官的證詞筆錄，應可作為認定行政責任的依據，以鑑是非。

遺憾的是，黃世銘未考慮到，一旦轉成行政調查，就有行政隸屬及權責的問題。就算因事涉法務部長，他必須越級報告，也還有行政院一級，不宜直接轉向總統。此外，完整的行政調查，應給當事人說明的機會；但黃世銘忽略這些眉角，拿著資料夜奔總統官邸，不但招來濫權之評，也讓自己和特偵組被推上政爭風暴的最前線。

特偵組的存廢，確有仁智之見。因為，在沒有特偵組的時代，檢察官還是辦了前總統陳水扁的國務機要費案，重點在檢察官的自覺和決心。但從這次風暴的本質看，特偵組雖有細節可議，但整體而言是功大於過；無論如何，其存廢可以討論，卻不能在不明事理的鬥爭氣氛中淪為政治陪葬品。

如果王柯關說案沒有辦，黃世銘及特偵組卻因此葬身於九月政爭，無異是政治力侵犯司法權成功，未來檢察權堪慮，台灣法治亦堪憂。