Apache Fires, Judicial Officers/Perspectives Fall Flat

The Apache "socialite group" decision not to prosecute anyone has sparked public outrage. Beyond the frustration, this case brings to light several issues regarding "judicial perspectives/officers" worth exploring: First, why should prosecutors defer to the Ministry of National Defense when pursuing criminal liability? Second, why do prosecutors "lack the backbone" to stand by a non-prosecution disposition? Can they really blame anyone for their lack of public trust? Third, what is the actual difference between judges and prosecutors? Even the Vice Premier of the Executive Yuan gets them confused. When even the judicial system habitually groups them together as "judicial officers," is there something wrong with the system? Fourth, when people cannot tell the difference between a prosecutor's non-prosecution disposition and a judge's acquittal, are we simply laughing at the Vice Premier's lack of common sense, or is there a deeper systemic chaos behind it?

Finally, the public's dissatisfaction with the decision not to prosecute in the Apache case seems to stem from the belief that prosecutors should have taken drastic action by indicting the suspects and demanding heavy sentences as the right thing to do to satisfy public indignation. However, while everyone intuitively feels that Lao Nai-ch'eng (勞乃成) and others should bear some responsibility, whether this must necessarily be "criminal responsibility" is open to discussion. In conclusion, based on past practical cases, violations of the Fortress and Military Base Zone Act rarely lead to severe outcomes. If prosecutors were to issue an indictment, request a heavier sentence, and then have the judge hand down a lenient sentence after the fact, it would not be a very appropriate approach. However, this does not mean they should escape severe administrative responsibility.

The Blank Criminal Law That Prosecutors Cannot Support

The main reason for the prosecutor's non-prosecution decision was relying on the Ministry of National Defense for endorsement. The so-called "blank criminal law" refers to criminal provisions that are left blank and must be defined by the Ministry of National Defense. Blank criminal laws are frequently criticized in theory as running the risk of violating the "principle of legality" (nullum crimen, nulla poena sine lege).

Simply put, the content of a blank criminal law is highly unstable and can change at the whim of an administrative decree or official letter issued by administrative agencies. As a penal measure intended to punish citizens, such uncertainty is far too high. Furthermore, laws that infringe upon people's rights should originally be deliberated and passed by the Legislative Yuan; leaving blanks for administrative agencies to define also runs counter to the rule of law.

This case is a prime example: should prosecutors blindly accept the decision of the Ministry of National Defense? Is there really no need to consider any legal principles whatsoever? Should they not scrutinize the consistency of the standards used by the Ministry of National Defense in designating fortresses? These are matters well worth discussing. (Of course, if the Ministry of National Defense did not actually designate it, and prosecutors believe it should have been designated according to consistent standards, the requirement prohibiting analogical interpretation in criminal law still necessitates an interpretation favorable to the defendant.)

In fact, the problem does not lie here at all; the true crux is that the public lacks confidence in prosecutors. When facing the privileged and powerful, prosecutors often hesitate and appear spineless. Yet when facing ordinary citizens, they are quick to indict and pursue matters relentlessly. The Apache case represents public anger directed at the elite, and the prosecutors' blanket decision of non-prosecution inevitably drew public ire. Compounding this by enlisting the Ministry of National Defense to provide an endorsement only made matters worse.

To be fair, the prosecutors' decision of non-prosecution is not an outrageous legal judgment. However, because the written non-prosecution disposition is not made public, we have no way of knowing whether the prosecutors searched high and low and exerted every effort in their investigation only to come up empty-handed, or if they merely went through the motions and simply complied with the Ministry's official letter.

Without transparency, it is impossible to speak up for prosecutors. Coupled with the traditionally low threshold for indictment in legal practice—and even the prevalent mentality of making citizens "go through the procedure to learn a lesson"—public confidence in prosecutors remains low. Consequently, in cases involving the privileged, prosecutors fail to "support" a non-prosecution decision that might otherwise be legally uncontroversial.

Prosecutors Who Do Not Want to Be "Swept Out" by Judges

Since the implementation of the "separation of prosecution and adjudication" in 1980, many residual problems have persisted. An old proverb says, "If names be not correct, language is not in accordance with the truth." Take the Taipei District Prosecutors Office, for example: to this day, it is still called the "Taipei 'District Court' Prosecutors Office." Is this signpost a court? A prosecutors office? Or a prosecutors office located inside a court?

Everyone acknowledges that judges and prosecutors have different functions and responsibilities. Therefore, the most ideal approach would be to clearly distinguish them from software to hardware, making it immediately obvious at a glance. The inability to distinguish them stems from historical factors, as the two were "stuck together" in the past. However, a different policy direction was decided as early as 1980.

The main reason for the current reluctance to make a clear distinction is that prosecutors worry the constitutional guarantee of "lifelong tenure for judges" might disappear, and thus they prefer not to draw too sharp a line. Continuing to interchangeably use the term "judicial officers" also provides a greater sense of security. Yet, these should actually be two separate issues.

The importance of prosecutorial independence is no less than that of judicial independence, and the protection of their status is certainly no lower than that of judges. Nevertheless, a functional separation is inevitable. Otherwise, if judges treat themselves like prosecutors and aggressively hound defendants, defendants will not thank judges even if they are later acquitted. Similarly, the moment a prosecutor issues an indictment, the general public immediately assumes the defendant is guilty—this is hardly a blessing for the state's institutional framework.

Fairly speaking, prosecutors' unwillingness to distinctly separate themselves from judges merely to secure their own status falls short of the expectations that the state system and society place upon them. One must ask: if they cannot remain impartial and objective when matters concerning their own interests are involved, can the public truly expect prosecutors to handle cases properly? Can they even be expected to stake their futures on it without hesitation?

Thus, we can say that in our country, prosecutors implicitly and vaguely hope that everyone will view them as judges. This also explains why even the Vice Premier gets them "confused." However, the "confused" Vice Premier treating a prosecutor's non-prosecution disposition as a judge's acquittal actually makes a certain degree of sense.

Those who know a little law can tell the difference between a non-prosecution disposition and an acquittal. However, under current law, a non-prosecution disposition is tantamount to an acquittal and carries the exact same effect. Once finalized, it cannot be overturned. In terms of this shared outcome, conflating a non-prosecution disposition with an acquittal actually makes quite a bit of sense!

However, if we trace this back to the principle of the "separation of prosecution and adjudication," the fundamental problem is that the legal effect of a prosecutor's non-prosecution disposition is simply too strong. A non-prosecution disposition should not carry the same final and binding effect as an acquittal. Therefore, for those who cannot tell the difference between a non-prosecution disposition and a judgment, their terminology may be wrong, but their legal intuition is correct: prosecutors hold immense power, and a non-prosecution decision means a final determination of innocence!

Taking the "Principle of the Ultima Ratio of Criminal Law" Seriously

Finally, the public's outrage over the non-prosecution decision in the Apache case likely stems from the hope that prosecutors would "punish the wicked and eliminate the evil" by pursuing heavy indictments to satisfy popular sentiment. Our traditional culture favors using "criminal punishment" to resolve all disputes. However, the foundational principle of a constitutional state is the "ultima ratio of criminal law" (the principle of the minimum necessity of criminal law)—the state's exercise of penal power must be a "last resort." Criminal law must be humble and restrained. It cannot be casually unleashed, especially in tandem with furious public sentiment.

In practice, violations of the Fortress and Military Base Zone Act rarely result in truly severe legal accountability. This is because it is the "outermost perimeter" of the law; genuine national defense secrets rely on personnel, systems, and technology to ensure their security. Designation as a "fortress or military base" merely serves to prevent "idlers and unauthorized persons" from casually wandering in.

Locations that truly require "strict defense" are invariably guarded by heavy troops; they are the focal point of foci, the core of cores. Therefore, it is said that this is merely the "outermost" law. Naturally, everyone has the intuitive feeling that Lao Nai-ch'eng and others should bear responsibility. However, the absence of criminal liability does not mean they should escape severe administrative responsibility.

As for the Ministry of National Defense, its endless, boundless, and bottomless "brain-dead" performances have once again exposed the rule of man, the lax military discipline, and the rudderless, ideologically bankrupt nature of the military. Its flustered and contradictory responses to external inquiries merely reflect a guilty conscience accustomed to bootlicking the privileged. Regrettably, this is the national military we are most familiar with; despair runs deeper than death, and it is hardly worth mentioning.