Monday, December 16, 2013

Prosecutorial Evaluation Committee Dereliction: Control Yuan Must Impeach Chen Shou-huang

Prosecutorial Evaluation Committee Dereliction:
Control Yuan Must Impeach Chen Shou-huang
United Daily News editorial (Taipei, Taiwan, Republic of China)
A Translation
December 17, 2013


Summary: The Control Yuan is about to take on the Huang Shiming case once more. If it impeaches both Huang Shi-ming and Lin Hsiu-tao, their action will have important symbolic significance. It will prevent the nation's criminal justice system from sliding downhill. If Chen Shou-huang's influence peddling results in nothing more than a warning, if the Control Yuan sits by doing nothing, it will seriously undermine the prosecution of legislative influence peddling, civil litigation against Wang Jin-pyng, and the confirmation of party memberships. It would be tantamount to decriminalizing influence peddling, and surrendering the criminal justice system to the forces of corruption. It is time the Control Yuan acted.

Full text below:

The Ministry of Justice Prosecutorial Evaluation Committee has concluded that Chief Prosecutor Chen Shou-huang of the High Prosecutor's Office colluded with Wang Jin-pyng to peddle influence on behalf of Ker Chien-ming. The committee concluded that this was a serious case of dereliction of duty. But it said that Chen Shou-huang confessed during questioning and immediately resigned. It said "he was highly responsible," therefore would not be referred to the Control Yuan for punishment. It recommended that as punishment, the Ministry of Justice issue a "warning." As expected, once the evaluation was published, Chen Shou-huang reneged and refused to resign. This farce may be the result of confusion or incompetence. But it has already inflicted major damage to the reputation of the Prosecutorial Evaluation Committee.

The influence peddling case is the first case to be handled by the committee since the "Judges Law" was passed, The system for internal discipline of officials within the criminal justice system has been strongly criticized. This is why members of the public were made part of the evaluation process. The purpose was to eliminate out of touch "dinosaur judges." The committee was supposed to represent professionalism and ethics. Who knew it would evince even less self-discipline than prosecutors, and leave people shaking their heads? It failed to distinguish between minor and major offenses. It allowed itself to be duped.

Influence peddling must be strictly forbidden. This is a given within any criminal justice system. Former Judicial Yuan President Shi Chi-yang said that anyone who peddles influence must step down. Criminal justice involves fairness. If power holders can intervene and change the verdict in a criminal trial, then fairness has disappeared. If the verdict in a criminal trial can be determined by those with more power or more wealth, we might as well determine the outcome behind closed doors. What do we need the criminal justice system for? If this is how it will be, then criminal justice will be reduced to a meaningless ritual.

Before the Judges' Law went into effect, Supreme Court Justice Hsiao Yang-kui peddled influence with the trial judge in a car accident case involving his son. The Supreme Court Internal Disciplinary Committee ruled that Hsiao Yang-kui was not guilty of influence peddling. But it also said that mentioning his son's case to the judge amounted to misconduct. It recommended that the Judicial Yuan refer him to the Control Yuan for impeachment. The Judicial Yuan adhered to more stringent standards in dealing with such cases. It concluded that Hsiao Yang-kui peddled influence. It immediately suspended him and referred his case to the Control Yuan for impeachment. The Commission on the Disciplinary Sanctions of Functionaries suspended him for six months. The Judicial Yuan voiced strong objections. Hsiao Yang-kui immediately resigned and retired. As this proves, the criminal justice system need not treat influence peddling lightly. Influence peddling is impermissible on behalf of a son. How can one make an exception for a legislator?

The Prosecutorial Evaluation Committee was established to provide external oversight, to compensate for the lack of self-discipline within the criminal justice system, and to eliminate judges who abuse the law. But the Prosecutorial Evaluation Committee merely scolded Chen Shou-huang and Lin Hsiu-tao. It merely gave them a slap on the wrist. It followed up harsh language with kid gloves. It clearly had no intention of upholding justice.

Since its establishment, the Prosecutorial Evaluation Committee has evaluated two cases. One. Taitung District Prosecutor Liu Chung-hui was abusive toward a court clerk. He discriminated against people from Taitung and defamed religion. The committee recommended referring his case to the Control Yuan and relieving him of his job. Two. Taipei District Prosecutor Lin Kuang-you intimidated and mocked a defendant. He insulted the plaintiff and told him not to settle. The Prosecutorial Evaluation Committee recommended referring his case to the Control Yuan and suspending him for two years.

These two prosecutors were guilty of character assassination. The Prosecutorial Evaluation Committee found them guilty of dereliction of duty and recommended harsh penalties. It found that Chen Shou-huang's influence peddling set a bad example for prosecutors. It found that Lin Hsiu-tao's conduct cast doubt on the fairness of the criminal justice system. Both men seriously undermined the independent and objective image of the criminal justice system. Yet the committee recommend nothing more than a warning. Is this consistent with the principle of proportionality? Individual character is of course important. But can we tolerate such negative images of prosecutors as a whole? Is the committee brave only when taking on lower echelon prosecutors? Does its hand shake when faced with political cases?

The committee treated Chen Shou-huang and Lin Hsiu-tao with kid gloves. The reason they gave was that the two men admitted to wrongdoing and showed sincerity. Their reasoning was far too emotionalistic. In particular since Chen Shou-huang reneged on his promise to resign, denounced the committee's evaluation, and refused to admit that he was ever in the wrong. The committee was naive and credulous. Chen treated committee members like fools.

The committee established a negative precedent by letting those guilty of influence peddling off with wrist slaps. From an institutional perspective, the Ministry of Justice may find it difficult to overturn the committee resolution. But the situation is not irremediable. The Control Yuan can still impeach Chen Shou-huang and Lin Hsiu-tao. It can still refer them to the disciplinary courts for punishment. Once the disciplinary courts impose disciplinary action, the two men's administrative sanctions or "warnings," will automatically lapse. There are many precedents for this.

The Control Yuan is about to take on the Huang Shiming case once more. If it impeaches both Huang Shi-ming and Lin Hsiu-tao, their action will have important symbolic significance. It will prevent the nation's criminal justice system from sliding downhill. If Chen Shou-huang's influence peddling results in nothing more than a warning, if the Control Yuan sits by doing nothing, it will seriously undermine the prosecution of legislative influence peddling, civil litigation against Wang Jin-pyng, and the confirmation of party memberships. It would be tantamount to decriminalizing influence peddling, and surrendering the criminal justice system to the forces of corruption. It is time the Control Yuan acted.

檢評會失職,監院應主動彈劾陳守煌
【聯合報╱社論】
2013.12.17 02:31 am

檢評會認定高檢署檢察長陳守煌接受王金平為柯案關說,違失情節重大;但因在約詢中陳守煌表明若經認定涉及關說便立刻辭職,故檢評會認為他「深具負責態度」,未將他移送監察院,僅建議法務部給予「警告」處分。詎料,陳守煌於評鑑報告出爐後當即反悔,拒絕辭職。這場鬧劇,無論是烏龍或失能,都已讓檢評會形象大傷。

此次關說事件之評鑑,是《法官法》實施後司法官評鑑法制化後的首件司法關說評鑑案。過去,由於司法人員的內部自律受到外界強烈批評,因而才有社會人士參與評鑑的設計,目的是希望藉此消滅恐龍司法官。誰知,檢評會所表現的專業與倫理,水準竟還不如過去的檢察官自律,讓人搖頭。檢評會的評鑑不僅輕重失衡,又昧於知人而集體遭欺蒙。

不容許關說,這是司法界的天條。司法院前院長施啟揚曾說:任何人若關說,就得下台。司法貴在公正,若權勢者能透過外力干預改變裁決,公正的防線潰堤,大家比權力、比財力、比後台決定勝負就好了,還需要司法作啥?果真如此,司法將淪為毫無價值的儀式性工具。

在《法官法》實施前,最高法院法官蕭仰歸為其子車禍肇逃案向承審法官關說。最高法院自律委員會審查後,認為蕭仰歸未關說,卻也認為他向其他法官提到其子之案件,行為不當,建議司法院將他移送監院彈劾。司法院採取更嚴格的標準處理此案,認定蕭仰歸關說,立刻將他停職並送監察院彈劾,公懲會並處以休職半年之處分。後經司法院積極勸退,蕭仰歸旋即退休離職。由此可見,司法界對待關說的標準絕不隨便,對自己的兒子也不行,難道立委可以例外?

檢評會的成立,原是希望引入外部的監督機制,彌補司法機關內部自律的不足,加速淘汰違法濫權司法官。但檢評會面對陳守煌、林秀濤的關說案,卻是「痛罵」而「輕罰」,嚴厲指責卻輕輕放下,完全看不出裁量的理路,也看不出維護司法價值的用心。

先檢視檢評會成立後評鑑過的兩個案件。其一,台東地檢署檢察官劉仲慧當庭辱罵書記官,並發表歧視台東人、汙衊宗教的言語;經檢評會評鑑,建議送監院免除其檢察官職務。其二,台北地檢署檢察官林冠佑開庭時恫嚇、怒罵被告,侮辱或要求告訴人不要和解,檢評會也建議送監察院將他休職兩年。

這兩位檢察官因損害他人人格,被檢評會認定失職而建議重懲;相形之下,檢評會認為陳守煌關說行為無法為檢察官表率,林秀濤的作為使司法的公正性受到質疑,均嚴重傷害檢察體系獨立客觀的形象,然而檢評會卻只建議警告處分,豈符合比例原則。個人人格當然重要,但檢察官整體形象豈會不足為意?或者,檢評會只會拿小檢察官開刀,但一碰到沾惹政治的議題,戒尺就拿捏不定了。

檢評會輕縱陳守煌和林秀濤,理由之一是兩人坦白事發經過,態度誠懇;這樣的說法,似流於感情用事。尤其,陳守煌隨即反悔,否定檢評會的報告,且拒絕承認自己有錯。如此一來,檢評會不僅犯了天真輕信的錯誤,也形同受到了愚弄。

檢評會創下輕放關說的惡例,從制度面看,法務部也不宜率爾推翻檢評會的決議;然而,事情並非毫無挽救餘地。關鍵在,監察院仍可主動對陳守煌和林秀濤提出彈劾,送職務法庭懲戒;一旦職務法庭作出懲戒處分,兩人的「警告」行政處分就會自動失效。這種作法,有不少前例可循。

監察院即將再度面臨黃世銘的處分案,如果同時也將涉及關說的陳守煌、林秀濤移送彈劾,將具有重要的象徵意義,防止國家的司法正義一路傾斜。否則,若陳守煌涉關說僅受警告處分,監院又置之不理,將嚴重影響立院處理關說案、民事訴訟處理王金平、確認黨籍案等連串案件的價值拉鋸,形同承認權勢階級關說有理,司法正義棄械投降。此刻,是監察院出手的時候了!

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