Public Oversight is the True Remedy for Evaluating Prosecutors

With serious disciplinary cases involving prosecutors erupting repeatedly around the country, Minister of Justice Chen Ding-nan, answering questions in the Legislative Yuan, said that to show his determination to remove unfit prosecutors, and to break through the life tenure that Article 81 of the Constitution guarantees judges and prosecutors, the Ministry would within six months propose a draft Prosecutor Evaluation Act to weed out unfit prosecutors and uphold judicial discipline. In recent days, commentary on this news has poured in, and many self-critical voices have appeared on prosecutors' internal website, urging the Ministry to properly diagnose the ills of the prosecutorial system. That the ever-complacent Ministry of Justice has shown such iron-fisted resolve is indeed refreshing to the public. But once the news cycle passes, several structural issues must first be clarified.

First, Minister Chen's phrase "the life tenure that Article 81 of the Constitution guarantees judges and prosecutors" is open to question. In fact, the purpose of Article 81 is to ensure that judges can adjudicate independently according to law without interference; it therefore grants them special protection of status to prevent the state from manipulating independent adjudication through personnel policy. But prosecutors are not adjudicating bodies, so Article 81's protection does not extend to them; prosecutors instead enjoy special protection of status at the statutory level by virtue of their character as judicial officers. In other words, judges and prosecutors play different roles in the judicial system and therefore receive protection of status for different purposes under the Constitution and statute. To avoid misleading the public, this point must be clarified first.

Second, for the general public, the distinction between judges and prosecutors may not be very clear or very important. But JRF's long-term observation shows that the problems in Taiwan's adjudication system (centered on judges) and prosecutorial system (centered on prosecutors) are not the same, and each has a different significance.

Take recent major judicial news. Problems with judges mostly concern delays, case backlogs, and a lack of expertise in financial cases; problems with prosecutors, by contrast, center on extramarital affairs, involvement with judicial "fixers," and drinking in hostess bars. Comparing the two, it is clear that the problems with Taiwan's judges have moved beyond discipline and corruption to demands for quality in handling cases, while recent news about prosecutors remains stuck at the level of discipline and integrity, showing that prosecutors lag behind judges in the progress of judicial reform.

Besides differing personal standards among judicial personnel, the very different environments in which judges and prosecutors exercise their powers may also make it easier for prosecutors to "sink." Judges adjudicate independently, and their duties take place mainly in the courtroom. Prosecutors, however, because they actively investigate crimes and direct police and investigators, can hardly avoid being tainted by Taiwan's long-standing unhealthy police and investigator culture, namely the culture of socializing in entertainment venues. Thus, while fighting crime, prosecutors are also easily contaminated by the very roots of crime and find it hard to keep themselves clean. As a recent party advertisement put it, colds and ecstasy are contagious; in fact, drinking in hostess bars is contagious too. Facing such a perilous environment, how can prosecutors not hold themselves to an even higher standard!

Furthermore, over the years JRF pioneered "judge evaluations" to address problems with judges: using judgments published on the Judicial Yuan's website, lawyers who appeared in a case evaluate the judge who decided it, so that good judges are commended and poor ones reminded. In addition, JRF's regular "court observation" program lets volunteers watch entire hearings and faithfully record and publish instances of judges scolding people or dozing off in open court. Over the years we have clearly seen improvement in judges' courtroom demeanor, showing that external oversight by the public has had a real impact on judicial reform.

Regrettably, JRF's years of effort cannot be applied to overseeing prosecutors. On the one hand, because investigations are confidential, the public cannot know how prosecutors behind closed doors in interrogation rooms insult, threaten, and deceive parties and witnesses. On the other hand, JRF has repeatedly asked the Ministry of Justice at least to publish indictments on its website for public review, but for years the Ministry has ignored the request, so JRF has never been able to evaluate prosecutors the way it evaluates judges. In fact, the recent string of prosecutor discipline cases shows that relying solely on judicial personnel's self-discipline or internal oversight is clearly insufficient. Therefore, quickly establishing a mechanism for "public oversight," while protecting defendants' rights and respecting the presumption of innocence, may be more practical and effective than Minister Chen's hope that the Legislative Yuan will pass a Prosecutor Evaluation Act.

The frequent discipline cases have certainly embarrassed the Minister of Justice, but the positive significance behind them is that the public and the government can promptly understand the problems with prosecutors and tackle them at the root. It is never too late to mend the fold. JRF will continue to stand with the people in vigorously overseeing the reform of prosecutors, police, and investigators, and we hope the Ministry of Justice will open its doors to reform and take in civil society's recommendations, so that government and opposition can together achieve the goals of judicial reform.

* Published in the Liberty Times.