The Legislature and the Control Yuan Evaluation Committee Have Decriminalized Influence Peddling

The Legislature and the Control Yuan Evaluation Committee Have Decriminalized Influence Peddling
United Daily News editorial (Taipei, Taiwan, Republic of China)
A Translation
December 16, 2013

Summary: Blue and Green camp legislators have been eager to repay favors owed to Wang and Ker. Over the past three months, they have used Huang Shi-ming for target practice. The committee has lost all objectivity. It matters not who repaid whose favors. The criminal justice system has been gravely wounded. Influence peddling has been decriminalized. It has become a dagger plunged into the heart of the criminal justice system.

Full text below:

The Control Yuan Evaluation Committee issued a resolution yesterday calling for the Control Yuan to relieve Huang Shi-ming of his post. That was not the most noteworthy aspect of the resolution. The most noteworthy aspect was that the committee found Chief Prosecutor Chen Shou-huang and Prosecutor Lin Hsiu-tao guilty of influence peddling, yet dismissed their offenses as "procedural errors" and let them off with a slap on the wrist. The Legislative Yuan and the Control Yuan Evaluation Committee have in essence decriminalized influence peddling. The negative consequences for criminal justice on Taiwan will be far reaching.

The influence peddling scandal erupted in September. Since then political considerations have reigned supreme. The Wang Jin-pying-Ker Chien-ming influence peddling case was swept under the rug, where it has remained. The committee resolution compared the testimony of Chen Shou-huang and Lin Hsiu-tao. It was the first time the full story has been examined since the Special Investigation Unit conducted its investigation. The committee confirmed that Wang Jin-pyng, Chen Shou-huang,  and Lin Hsiu-tao formed an "influence peddling iron triangle" that pressured Lin Hsiu-tao into not appealling the case. This was more than mere conspiracy with intent to engage in influence peddling. This was an actual case of influence peddling within the criminal justice system. This was a fait accompli.

The Control Yuan Evaluation Committee press release accurately detailed the Wang-Chen-Lin influence peddling iron triangle. It concluded that such practices undermined the neutrality and independence of the criminal justice system. It concluded that such practices violated Articles 11 and 12 of the Prosecutorial Ethics Law. Yet the Control Yuan Evaluation Committee absolved Chen Shou-huang and Lin Hsiu-tao of blame. It said that because they confessed, therefore "administrative disciplinary measures were sufficient. We need not turn them over to the Control Yuan." It recommended that the Ministry of Justice issue a "warning." In the same report, by contrast, it revealed a hate-filled attitude toward Huang Shi-ming, utterly at odds with the tolerant and forgiving attitude it showed towards Chen Shou-huang and Lin Hsiu-tao. The treatment it accorded the different parties was like day and night.

One aspect of the resolution was particularly controversial. High Court Prosecutor Chen Shou-huang colluded with Wang Jin-pyng in influence peddling. He peddled influence with his own underling, Prosecutor Lin Hsiu-tao. Lin Hsiu-tao obeyed Chen's wishes. She changed her mind and did not appeal. The committee deliberately downplayed the two mens' offenses as merely "procedural errors." It claimed that their offenses were merely "failures to log their actions according to regulations." As a result, in the future any prosecutor indicted for influence peddling can simply argue that he or she merely failed to "log their actions according to regulations" and get off scot free.

This is where the Wang Ker influence peddling case now stands. Huang Shi-ming and the Special Investigation Unit have been punished for their procedural errors. President Ma's bungling further confused the issue. Before long, people forgot the real issue, influence peddling. Instead they chased after minor procedural matters. Add to this political smoke screens and infighting within the criminal justice system. Those who investigated the crime were labeled as criminals. Those who engaged in influence peddling were miraculously turned into heroes. Such developments were deeply disturbing.

Leave aside the personal ordeals undergone by those who were evaluated. One result of the Control Yuan Evaluation Committee resolutions has people especially worried. The resolutions virtually echoed Wang and Ker's political counterattack, verbatim. Their interaction essentially decriminalized influence peddling. From this day forward, those who wield power can reach into the criminal justice system and determine the verdict in criminal prosecutions. Officials within the criminal justice system can relax while currying favor with those who wield power. They can help each other settle lawsuits. Even if they are caught red-handed, there will be no serious consequences. They will run less risk than officials within the criminal justice system who investigate crimes with due diligence. This is the message that the Control Yuan Evaluation Committee resolution has sent the criminal justice system.

The Control Yuan Evaluation Committee resolution was based on an independent inspection agency established by the "Law for Judges." It covers prosecutors, scholars, attorneys and social activists. This is the first time it has been used. It is still experimental. Therefore it is difficult to judge it too harshly. But the resolution is biased in both its vision and its values. Observers have lost faith in its objectivity. Worse, it may mislead officials within the criminal justice system. It may create a rift between society and the criminal justice system. The danger this poses must not be minimized.

The Supreme Prosecutor felt that the Control Yuan Evaluation Committee has long exhibited a "prejudicial mindset." It long ago lost any objectivity. As a result its resolution was unreasonable. For example, Control Yuan Evaluation Committee Member Hong Tai-wen was Huang Shi-ming's aide. Therefore he recused himself. But other committee members, who were determined to prosecute, refused to recuse themselves. Instead, they remained and dominated the committee. This enabled them to take advantage of those who trusted the rule of law. They imitated ruling and opposition political party power struggles. The public television and NCC controveries have made such struggles commonplace. The Control Yuan Evaluation Committee's objectivity will now be suspect, colored as it is by Pan Green political affiliations.

Blue and Green camp legislators have been eager to repay favors owed to Wang and Ker. Over the past three months, they have used Huang Shi-ming for target practice. The committee has lost all objectivity. It matters not who repaid whose favors. The criminal justice system has been gravely wounded. Influence peddling has been decriminalized. It has become a dagger plunged into the heart of the criminal justice system.
 
至此，立院和檢評會合力把關說除罪化了
【聯合報╱社論】
2013.12.16 02:02 am

檢評會日昨所做出的決議，最讓人矚目之處，倒不是該會嚴厲要求監院將黃世銘撤職，而是它認定檢察長陳守煌和檢察官林秀濤確涉及關說與被關說，卻認為那只是「程序瑕疵」而輕輕放過。至此，在立法院和檢評會的唱和下，關說已形同被宣告「除罪化」了，這將為台灣司法埋下無盡惡果。

自九月爆發關說案以來，因政治勢力的喧賓奪主，王柯關說案的本質一直隱諱不彰，未受到充分檢視。這次檢評會的調查，透過陳守煌和林秀濤證詞之交叉比對，可謂在特偵組調查之外首度還原了其間來龍去脈，證實王金平—陳守煌—林秀濤之間的「三聯式關說」確實存在，且成功促使林秀濤改變原本打算上訴的心意。亦即，這不僅僅是一件意圖關說司法案，而且是一件司法關說「既遂」事件。

遺憾的是，檢評會在新聞稿上既如實詳述王—陳—林「三聯式關說」之存在，也認為兩人如此作法可能損及職務之公正、超然及獨立，分別違反《檢察官倫理規範》第十一條及第十二條；但檢評會卻隨即又替陳守煌和林秀濤開脫，說他們均已坦白、誠懇陳述事發經過，因此，「衡情予以行政懲處為已足，無移送監察院之必要」，僅建議法務部給予「警告」處分。在同一分報告中，檢評會對於黃世銘表現出必欲除之而後快的姿態，相形之下，對陳守煌、林秀濤卻是體貼寬容備至；兩者的待遇，直如天淵之別。

最滋爭議的一點是，高院檢察長陳守煌接受王金平關說，並轉而向屬下檢察官林秀濤關說，而林秀濤也如其指示做出違背自己原本意願的不上訴處分；在這種情況下，檢評會卻刻意淡化兩人的責任為「程序問題」，聲稱他們的違法只是「未依規定辦理登錄」。如此一來，日後任何檢察官關說或接受關說被查獲，豈非皆可援引此案辯稱只是「未辦登錄」而輕鬆脫罪？

王柯關說案演變至此地步，黃世銘及特偵組的諸多偵辦程序疏失自難辭其咎，馬總統笨拙的手腕則使問題愈發夾纏；然而，當事件演變成關說的本質無人聞問，反而是追究偵辦程序的枝節遍野蔓生，經過政治狼煙的助燃，再加上司法歧見的催化，不僅將辦案者打成罪犯，更使得關說及被關說者搖身變成英雄。這樣的發展，簡直令人毛骨悚然。

撇開被評鑑者的個人遭遇不談，檢評會做出的決議，最讓人擔心的後果之一，是呼應了立法院擁王柯人馬的政治反撲，彼此前呼後擁地將關說行為「除罪化」了。自今而後，權勢人物可以堂皇將手伸進司法機關，隨意影響案件判決；而司法人員也可以放心和權勢人物酬酢交好，甚至幫對方擺平官司，就算被查獲接受關說，也不致有何嚴重後果；甚至，要比司法官拚命認真辦案的「風險」要小得多。檢評會的決議，留給整個司法界的隱喻，不正是如此這般？

檢評會是根據《法官法》設置的獨立機構，成員涵蓋檢察官、學者、律師和社會公正人士等，由於是第一屆初次運作，仍帶有很強的實驗性質，自難過度苛責。然而，它這次決議在視野與價值上的偏倚，不僅有失外界對其公正超然之信任，它對司法人員可能造成的誤導，乃至對社會認知及司法正義可能造成的斲傷，都不可小覷。

就如最高檢的評論，認為檢評會的發言早有「預設立場」，因喪失客觀立場，而作出不合理的決議。其中，諸如檢評會主席洪泰文以身兼黃世銘幕僚而自請迴避，而部分評委為移送該案的民間司改會成員卻不主動迴避，反而居間主導。這類「君子可欺之以方」的情形，其實都複製了朝野的政治角力風格，人們在公視及ＮＣＣ之爭也已屢見不鮮，檢評會的公正性因染綠而招致質疑亦恐難免。

三個月來，藍綠立委為回報王、柯的人情，而將黃世銘當成箭靶。而檢評會這次的輕重失衡，不管是回報了誰，對司法都是大傷；將關說「除罪化」，正是刺殺正義的凶殘一刀。