Influence Peddling Must Not Become Our National Shame

Influence Peddling Must Not Become Our National Shame
United Daily News editorial (Taipei, Taiwan, Republic of China)
A Translation
November 4, 2013

Summary: Prosecutor General Huang Shi-ming has been indicted for leaking evidence and other crimes. The Wang Ker influence peddling case is headed toward another anticlimax. The entire affair has become a perversion of justice in which those who peddle influence get off scot free, while whistleblowers are pilloried. If the responsible bodies ignore the danger of influence peddling on the criminal justice system, Huang Shi-ming will not be the only victim. The victim will be anyone courageous enough to defy special interests and speak the truth. If the influence peddling case is swept under the rug, it will be the collective shame of twenty-first century Taiwan.

Full text below:

Prosecutor General Huang Shi-ming has been indicted for leaking evidence and other crimes. The Wang Ker influence peddling case is headed toward another anticlimax. The entire affair has become a perversion of justice in which those who peddle influence get off scot free, while whistleblowers are pilloried.

Huang Shi-ming committed procedural errors while handling the influence peddling case. These errors led to charges of leaking secrets and illegal wiretapping. He must bear responsibility for any such errors. But consider the integrity of the system of government. Almost everyone has forgotten the real issue -- influence peddling. Instead, everyone is pontificating in on procedural minutiae. Is this not ironic? As matters stand, the prosecution is divided into opposing camps. The central issue -- justice -- has been forgotten. The Blue and Green political parties each have their axes to grind. The criminal justice system sits by and watches, doing nothing. It drags its feet on the revocation of Wang Jin-pyng's party membership. In the event Huang Shi-ming is sacrificed and convicted, how much respect will the public still have for the criminal justice system?

The Taipei District Prosecutor's Office is indicting Huang Shi-ming. It is attempting to demonstrate that its prosecutors are independent, that even a lowly District Prosecutor can indict the Prosecutor General. But its indictment reduces the Wang Jin-pyng influence peddling case to a "personal matter." It minimizes the importance of influence peddling on the criminal justice system, even as it maximizes the importance of procedural errors. It applies an unreasonably narrow definition of the "public interest" vis a vis wire tapping. Applying such grossly lopsided standards in order to prosecute Huang Shi-ming can only undermine confidence in the criminal justice system.

It is hard to argue that Huang Shi-ming did not make procedural errors while prosecuting the Wang Ker influence peddling case. Special Investigative Unit prosecutors were still hearing the case. Wiretaps were still in progress. The official investigation was still ongoing. Huang Shi-ming decided to reclassify the case as an "unlawful procedure" instead of an "unlawful prosecution." But that is his own spin, nothing more. He erroneously cited Article 44 of the Constitution, which states that when one Yuan has a dispute with another, the President shall convene a dispute settlement session. He rushed off to the presidential palace to report, turning the influence peddling case into a constitutional controversy.

But peel away the layers of the onion. Return to the legal definition of leaking secrets. Here is what we must consider. When Huang Shi-ming reported the case to the President, did he really violate secrecy? To safeguard the public interest and to protect legitimate rights and interests, prosecutors may reveal confidential information to people other than investigators.

Huang Shi-ming stated repeatedly that the case concerned high-level Legislative Yuan officials. Even the Premier was powerless to prosecute them. Lin Hsiu-tao was subpoenaed. That could have led to the leak. To prevent the influence peddling case from being swept under the rug, and to ensure that the president was not taken by surprise by the fact that the Speaker of the Legislature was peddling influence, Huang reported to the President. District Prosecutors declared these considerations "inconsistent with the public interest." Were they? That is questionable. When prosecutors search the premises of a specific organization, or interrogate a specific individual, they invariably notify the head of the relevant agency. Wouldn't that amount to a "leak?" Huang Shi-ming reported case information to the President. The Supreme Prosecutor's Office completed its investigation on September 6. The results proved that the direction taken by the Special Investigation Unit was unaffected by progress reports issued to the President.

This time prosecutors refused to accept Huang Shi-ming's argument that extraordinary measures were necessary because those engaged in influence peddling were too highly placed. Instead, they reproached Huang Shi-ming. If other high-level cases within the system can be disregarded, authoritarianism may well make a comeback. The District Prosecutors' argument underestimates Legislative Yuan influence peddling. This was unprecedented, and unlikely to recur. We may be playing Monday morning quarterback. But what must a Prosecutor General do to abide by the system, but also punish wrongdoers? That remains unanswered. Opinions differ. How can District Prosecutors cavalierly declare that all the necessary legal institutions and mechanisms are already in place? 

The influence peddling case has monopolized the headlines for several months. Huang Shi-ming finds himself besieged, threatened with criminal and administrative penalties. Meanwhile, what is the Legislative Yuan doing about the influence peddling case? The Disciplinary Committee is obdurately dragging its feet. The penalties for the Legislative Practices Act desperately need to be updated and enforced. But the Legislative Yuan pretends to be deaf and dumb. If it pillories Huang Shi-ming, what will it be? Will it be the nemesis or champion of criminal justice on Taiwan?

Huang Shi-ming was guilty of administrative oversights. For those he must bear responsibility. But was reporting the Speaker of the Legislature's influence peddling to the President really "leaking secrets?" That is highly dubious. Huang Shi-ming is aloof and proud. He refuses to apologize for his omissions. But ruling and opposition legislators alike want only to be rid of him. That amounts to a political vendetta against the criminal justice system. The District Prosecutor's Office has indicted Huang Shi-ming. Did the Taipei District Prosecutors Office demonstrate courage? Or are the rumors true? Did the Tseng Yung-fu camp exact revenge against Huang, in spades? For the answer, officials within the criminal justice system must look into their hearts.

Huang Shi-ming's personal fate is not something we must wring our hands over. What should concern us is our system of government, criminal justice, and social values. Amidst political struggles, personal grudges, and factional disputes, these have been forgotten and sacrificed. Meanwhile, details and formalties continue to be blown all out of proportion. The underlying issue, the substance, is obliterated from our consciousness. If the responsible bodies ignore the danger of influence peddling on the criminal justice system, Huang Shi-ming will not be the only victim. The victim will be anyone courageous enough to defy special interests and speak the truth. If the influence peddling case is swept under the rug, it will be the collective shame of twenty-first century Taiwan.

莫讓關說案成為時代之恥
【聯合報╱社論】
2013.11.04 01:55 am

檢察總長黃世銘被台北地檢署依洩密等罪起訴，把王柯司法關說案再度推向反高潮。整起事件，正朝向「關說者沒事、揭發者有罪」的方向發展。

黃世銘在結案程序上留下瑕疵，招致洩密及違反通訊監察之罪，這是他必須承擔的責任，無法推卸。但從國家體制的健全而言，政治關說司法的主題竟乏人聞問，各方卻在程序的枝節上打得如此虎虎生風，豈不諷刺至極？目前的景象是，檢察系統分裂各擁其主，棄司法核心價值於不顧；藍綠政黨各取所需，法院更是袖手旁觀，對王金平黨籍案緩步處理。俟黃世銘被犧牲定罪，司法又能贏得什麼尊重？

台北地檢署起訴黃世銘，證明我們的檢察官足夠獨立，小檢察官照樣能起訴總長。不過，起訴書將王金平涉及關說司法簡化為「個人事項」，將關說司法的利害關係「極小化」，卻將辦案程序瑕疵「極大化」，並極度嚴格認定監聽資訊公益公開的範圍；以如此不對稱的標準認定黃世銘違法，恐怕也同時傷害了司法。

黃世銘處理王、柯關說案，程序不周確難服人。特偵組檢察官還在問案，監聽還未下線，形式上仍屬偵查中的樣態；黃世銘決定將此案由「刑事不法」轉成「行政不法」，僅是他個人心中的認定。而他錯引憲法第四十四條院際爭議時由總統召集會商解決的條文，急衝總統官邸報告，也讓關說案招致憲政爭議。

但剝開重重糾葛，回到洩密罪的構成要件，要論究的是：黃世銘在案件偵查中向總統報告，是否真不符合偵查不公開的例外規定？亦即，為維護公共利益、保護合法權益等情形，檢察官可將偵查秘密告訴非辦案人員的其他人。

黃世銘多次說明，此案事涉立法院長的高層級，就連行政院長也無法處理；此外，因傳喚林秀濤，可能使消息外漏；為避免關說案不了了之，且讓總統對於國會議長關說案先有心理準備，他因而向總統報告。這些考量，是否如檢察官所認定完全「不符合公益」，值得商榷。否則，過去檢察官因辦案須搜索特定機關或約談特定人，都先向機關首長打招呼，豈不都構成洩密？且如同黃世銘交給總統的專案報告裡記載，最高檢訂九月六日前完成偵查作為，結果也確乎如此，特偵組的偵查方向及進度並未因向總統報告而受影響。

此次，檢察官不接受黃世銘所稱關說涉案者「層級高」的說法，且數落黃世銘，若辦理類似「層級太高」案件都可置制度於不顧，恐生「專制復辟」。這樣的說法，恐怕小看了立法院長關說的層級；這不但是史無前例，未來恐也少有。即使從事後諸葛的角度看，檢察總長該如何做才能兼顧體制、又達到懲治效果，至今仍是一團迷霧、意見紛紛，豈如檢察官所說「處理制度與機制俱在」那麼輕鬆！

關說案喧騰近兩個月，黃世銘四面楚歌，刑事、行政懲處齊發；然而，反觀立法院對自家人關說司法，又作了什麼處理？不僅紀律委員會一路推拖拉，對於「立法委員行為法」應該增訂罰則補強關說司法之規範，立院也全都裝聾作啞。把黃世銘打倒，是在消滅台灣司法的大敵，或是守門人？

黃世銘犯下行政疏漏，自該負起責任；但向總統報告議長關說案，是否如檢察官所訴構成「洩密」罪名，恐怕有待商榷。黃世銘性格孤傲，面對自己的疏漏遲不道歉，致朝野立委皆欲除之而後快，但這正是政治對司法的反撲。而地檢署起訴黃世銘，真的是台北地檢署六親不認的英勇義舉，或如外傳是曾勇夫人馬「加倍奉還」的報復，司法人用自己心中那把尺想想吧？

黃世銘的去留並不足惜，令人扼腕的是國家的體制、司法的正義、社會的價值，在政治勢力、個人恩怨與派系糾葛的角力下一再被模糊與犧牲；同時，細節與形式不斷被放大，主幹與實質卻被當成無物。如果各機關輕忽政治關說案侵犯司法權的本質，最後遭到犧牲的將不只是黃世銘，而是時代對抗特權、釐清是非的勇氣。若關說案的本體消失在風中，那真是廿一世紀的台灣之恥！