High Standards and Low Thresholds in the Leak Case

For alleged violations of Article 132 of the Criminal Code and Article 27 of the Communication Security and Surveillance Act, the Prosecutor-General has been indicted in an unprecedented move. Other civil servants below the presidential level have seemingly either escaped investigation or received non-prosecution dispositions. Regardless of the outcome, issues such as the Prosecutor-General being indicted, whether he should step down to take responsibility, and whether and how the President can be investigated are well worth discussing.

Judicial Yuan Interpretation No. 627 recognizes presidential immunity as a high-standard expression of respect and protection. However, it also defines its nature and scope as merely a "temporary procedural obstacle" rather than a "substantive exemption from liability." Therefore, during the President's term in office, the President cannot be investigated as a defendant; nevertheless, if there is suspected criminal activity by the President, necessary evidence preservation may still be conducted. The previous investigation and evidence preservation conducted by Prosecutor Ch'en Jui-jen, without indicting former President Ch'en Shui-bian, serves as a fitting example. While the Taipei District Prosecutors Office certainly could not list President Ma as a defendant, it also confirmed the fact that the President had passed on investigative secrets to the Premier and the Deputy Secretary-General to the President. Whether subsequent investigations will continue, and even further clarify the active or passive relationship between the President and the Prosecutor-General—which touches upon whether the President was involved in direct leakage or instigation of leakage—deserves close attention.

The Prosecutor-General issued a stern statement at the earliest opportunity, expressing deep distress and accusing the Taipei District Prosecutors Office of yielding to pressure, while promising to resign if convicted in the first instance. "Deep distress" is a personal feeling and not subject to review, but for the head of the prosecution system to accuse subordinate prosecutors of "yielding" is a severe and grave "high-standard" conclusion. Can prosecutors nationwide truly "silently" endure this? That being said, if the Prosecutor-General genuinely believed that the subordinate prosecutors yielded to pressure, pursuant to the provision on "prosecutorial unity" under Article 93, Paragraph 1, Paragraph 2 of the Judges Act, he should have ordered the prosecutor who performed their duties improperly to hand over the case. Yet, as a defendant, HUANG Shih-ming should have recused himself despite any reluctance; yet being unwilling to resign to face investigation, nor being able to order prosecutors to hand over individual cases, this creates a massive "prosecutorial contradiction." How can prosecutorial credibility and the function of unity be maintained?

Turning to the standard for resignation, political appointees who are indicted are generally suspended or step down on their own initiative; the Prosecutor-General is a specially appointed official and is not entirely devoid of political responsibility. Moreover, the Court Organization Act was specifically amended in 2006 to change the selection of the Prosecutor-General to nomination by the President and consent by the Legislative Yuan, granting a four-year term of protection precisely in the hope that the Prosecutor-General could resist political pressure and thoroughly investigate corruption among high-ranking officials. HUANG Shih-ming's actions precisely辜負 (betrayed) such high-standard treatment; by pandering to high-level politics, he has crossed the red line, and upon facing criticism and indictment, he still uses his term of office for self-preservation, completely subverting the purpose of the institutional design.

The Ministry of Justice Unexpectedly Gives Full Backing

Even more absurdly, the Ministry of Justice cited the Judges Act to claim that the Prosecutor-General is a prosecutor, pulling out the lowest threshold in criminal cases to define that only cases appealed to the third instance are of serious gravity and warrant suspension from duties, clearly giving him full backing. Yet the Prosecutor-General holds the dual identity of both a specially appointed official and a prosecutor; resigning the position of Prosecutor-General and changing one's status as a prosecutor are two separate matters. Is the Ministry of Justice conflating the two out of ignorance or intent?

The law grants the President and the Prosecutor-General high-standard privileges in the expectation that both will boldly take on responsibilities and dedicate themselves to the soundness and development of the nation's rule of law, rather than taking the lead in damaging or abusing the system and then treating themselves with low standards. Between high-standard expectations and low-standard self-indulgence, what is right and wrong is self-evident.

※ This article was edited by the editors of the Apple Daily Forum, retitled as 〈HUANG Shih-ming's Low Threshold〉, and published on November 2, 2013, in Apple Daily / Forum / Focus Commentary