What Can Control Yuan Members Do?

Photo / Taiwan Junior

The newly nominated Control Yuan members faced a stern warning from the Legislative Yuan, with an unprecedented 11 nominees being voted down, setting a new record. While this is certainly related to political maneuvering, the President's monopoly on the nomination power—handpicking close associates—has inevitably tarnished the image of the Control Yuan members, who ought to be selfless and fearless. With the control power tilting rapidly toward the President, it is already failing to act as a check and balance in the separation of powers; if it further endangers the operations of other government branches, it merely adds insult to injury.

Although the Control Yuan is unique to our country, its essence belongs to the checking power of parliamentary investigation and impeachment. Control Yuan members no longer hold the status of people's representatives and have lost the public as their backing. Legislators only possess the power of consent or rejection; unless Control Yuan members truly intend to accomplish something, they will inherently remain closer to the President who nominated them. In recent times, Control Yuan members' timidity in confronting executive power has been widely criticized, and their infringement upon judicial power is frequently heard of, which is why arguments for abolishing the institution repeatedly arise.

Not Infringing Upon Judicial Independence is Fundamental

Judicial independence is the foundation upon which judicial power is maintained. It encompasses the independence of judicial power itself—meaning the separation of and checks and balances among executive, legislative, and judicial powers; institutional independence, whereby judicial organs are not subordinate to any other government organs and exist independently; and personal independence, meaning judges adjudicate according to law without any interference.

Recently, in the "Tapu-Mei Vanilla and Herbal Biotech Park BOT Case," Control Yuan members censured the Chiayi County Government, deeming the feasibility study and financial planning sloppy. This case also involves the incumbent County Magistrate, Ch'ang Hua-kuan, who was indicted by prosecutors for allegedly taking bribes from businesses while serving as a legislator. However, the first-instance court acquitted her, and the case is currently pending in the second-instance court.

Article 27, Paragraph 1 of the Enforcement Rules of the Control Act states: "Where the same act of the person under investigation in an investigation case is undergoing criminal investigation or trial, the investigation shall not be suspended. However, if it is deemed necessary because administrative responsibility must be determined by whether a crime is established, the investigation may be suspended."

When a first-instance verdict has resulted in an acquittal and the second-instance trial is still ongoing, do Control Yuan members "forwarding investigative data to judicial units" constitute "interference with the judiciary"? Some believe that the Control Yuan members are targeting Ch'ang Hua-kuan, but formally, the subject of the censure is the county government, and administrative responsibility is not determined by whether Ch'ang is guilty or not. Waiting until Ch'ang Hua-kuan's acquittal or conviction is finalized before conducting an investigation or issuing a censure also seems somewhat peculiar.

Even if the Control Yuan members subsequently deliver the investigative data into the hands of the judges, whether to adopt it is entirely up to the judges to decide, and it hardly seems justifiable to fear any threat of interference with a judge's independent adjudication. At most, it is an attempt to use public opinion to exert pressure on the judges. Of course, this is very difficult to prove, and at the same time, no judge would admit to rendering a judgment due to media pressure.

Therefore, as long as the actions of the Control Yuan members are not directed at the judges, submitting data to judges during an ongoing trial can at best be described as the Control Yuan members being truly "enthusiastic about assisting in judicial investigations." A reminder, however, is that our country's litigation system adopts a modified adversarial system. If the court does not actively request it, theoretically, it would be more appropriate to submit the evidentiary data to the prosecutor, leaving the prosecutor to shoulder the burden of proof in court.

Caution Must Be Exercised When Intervening in Prosecutorial Investigations

Let us now discuss prosecutors. Prosecutors differ from judges in that they are bound by the principle of "prosecutorial unity"; hence, their independence is not as clear-cut as that of judges, and superior prosecutors may lawfully and reasonably direct the handling of cases. Regardless, investigation is the core part of prosecutorial power and, even if not clearly defined as judicial power, should be respected.

Grand Justices' Interpretation No. 325 has already clarified: "Where the independent exercise of official powers by state organs is guaranteed by the Constitution... as well as the dispositions, case files, and evidence regarding investigations and trials prior to the finalization of a judgment in a litigation case, the Control Yuan's exercise of investigative power over them is inherently subject to limitations." This shows that the exercise of control power is not without bounds and has a specific scope.

Consequently, some Control Yuan members have questioned prosecutors (of the Special Investigation Division) regarding individual cases (such as Ch'en Shui-bian's corruption case) and deemed the investigative methods unusual; others have argued that the legal interpretations made by (military) prosecutors were mistaken regarding specific laws (such as the Lin Yi-fu defection case). All of these are questionable because they may infringe upon the core domain of prosecutorial power.

Article 27, Paragraph 2 of the Enforcement Rules of the Control Act states: "During the handling of a case under investigation or trial, the handling personnel shall, regarding matters related to the case under handling, try to avoid conducting investigations during their tenure. However, if it is deemed that the handling personnel are involved in corruption, dereliction of duty, or gross violations of human rights, and there is a need for immediate investigation, investigations may still be conducted by taking the circumstances into consideration."

Regarding general legal interpretations, unless the principle of "prosecutorial unity" has failed, the prosecutorial system naturally possesses its own self-correcting mechanism. For disputes over the application of legal interpretations in prosecutorial power, the Control Yuan should at most urge the activation and operation of such a self-correcting system; it is inappropriate for the Control Yuan to take a stand, express legal interpretations, or even force acceptance.

As for human rights issues arising from individual cases, such as the Li Tsung-jui covert filming case where images violating victims' privacy were continuously leaked, investigating the good intentions behind violating the principle of investigation confidentiality is warranted, but the methods should perhaps be more refined, and intervention should await an appropriate moment. Moreover, given the severity of information leaks by our country's police and prosecutors, if the Control Yuan members are truly dedicated, they should conduct general investigations rather than selectively and arbitrarily picking high-profile social cases to handle, which only invites criticism.

The "Blue Ocean" for Control Yuan Members

In reality, taking the Chiang Kuo-ch'ing case as an example, had it not been for the active intervention and investigation of the Control Yuan members, there would never have been a day when his innocence was restored and the truth of the case brought to light. This also demonstrates that individual judicial cases are not entirely off-limits to intervention; rather, it is a question of the timing and manner of intervention. As long as there is the will and willingness, it is believed that the Control Yuan can still achieve impressive results.

Finally, under the current system where they no longer hold the status of people's representatives, Control Yuan members are advised to be more sensitive to the suffering of the people, avoid getting too entangled in "hot-button" political calculations, and refrain from excessively heavy-handed interventions that diminish their own stature. Only by diligently investigating the grievances and wrongful convictions of the people, consistently making behavioral judgments from the high ground of human rights, and unselfishly rooting out corrupt officials will they earn the respect of the people. This, truly, is believed to be the "blue ocean strategy" that gives the Control Yuan its value for existence.