The Chinese Nationalist Party (KMT) legislative caucus has suggested reinstating the Ministry of Justice’s Special Investigation Division (SID) and pushing for reforms such as the introduction of legislative investigative powers. Is there really a need to reinstate the SID, which was abolished back in 2016?
During the Democratic Progressive Party (DPP) administration in 2006, Article 63-1 was added to the Court Organization Act (法院組織法) to establish the SID under the Supreme Prosecutors’ Office, to investigate corruption and negligence of duties by officials, as well as major economic or social crimes.
Meanwhile, the procurator-general was nominated by the president and approved by the legislature for a non-renewable term of four years to maintain the independence of prosecutorial power from outside interference.
After the establishment of the SID, since its main targets of investigation were high-level civil servants such as the president and vice president, any action would always give rise to political associations.
After the power transfer in 2008, despite the fact that the SID’s targets included people from both the blue and green camps, the majority of prosecutions were still against officials of the former DPP administration of former president Chen Shui-bian (陳水扁), including the former president, and even now, there are still some cases being tried in court.
How many of the cases are guilty and how many are not guilty?
Then-prosecutor-general Huang Shih-ming (黃世銘) went so far as to report to then-president Ma Ying-jeou (馬英九) the content of the wiretapping of then-legislative speaker Wang Jin-pyng (王金平) in 2013 without having yet concluded the investigation.
Huang not only contravened the principle of confidentiality in investigations, but also allowed the political weaponization of the SID. Therefore, after another power transfer in 2016, the legislature amended the Court Organization Act to abolish the SID, officially consigning it to history.
In the past, the number of prosecutors in the SID was legally restricted to 15, so it often had to borrow prosecutors from prosecutors’ offices at all levels. However, the Court Organization Act did not expand the prosecutorial powers of the SID and there was no difference in the authority between the SID prosecutors and regular prosecutors.
Trying to eradicate corruption in public service just by upgrading the organizational level of a unit would be oversimplifying the problem, and would cause the prosecution system to be caught in a whirlpool of political disputes, which would damage its credibility.
The problem lies not in whether to reinstate the SID, but in how to ensure the neutrality and objectivity of prosecutors, as well as the professional division of labor and effective allocation of resources within all prosecutors’ offices.
In particular, prosecutors’ offices nationwide are being overwhelmed just by handling fraud cases, and the number of prosecutors who are mentally and physically exhausted and might opt for early retirement is gradually increasing. So how to prevent this loss of talent is a more important and urgent task.
The chapter on the procuratorate in the Court Organization Act is outdated and lawmakers should promptly introduce a separate bill on the procuratorate after comprehensively reviewing the various problems of the existing prosecutorial system.
Wu Ching-chin is a professor in Aletheia University’s Department of Law and director of the university’s Criminal Law Research Center.
Translated by Eddy Chang
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