Ten Questions for the Prosecutor-General

The President nominated current Supreme Prosecutors Office Chief Prosecutor Yen Ta-ho as the Prosecutor-General candidate, and submitted the nomination to the Legislative Yuan on March 13. Once scheduled on the agenda, it will be deliberated by legislators. People from all walks of life have reviewed Yen's educational and professional background and consider him an exceptional choice.

However, considering the hard lesson of Huang Shih-ming—whose momentum upon nomination was no less than Yen's today and who was widely supported by frontline prosecutors, yet no one could have predicted his eventual downfall—there are always speculations and guesses in the public sphere whenever a new person comes and an old one goes, mostly centered around the layout of political power structures.

While presidential nominations inevitably involve political considerations, given the term guarantee, we even more expect the Prosecutor-General to demonstrate a firm stance and actions regarding "prosecutorial values." Let the speculations of "Empresses in the Palace" be left for political pundits to chat about over tea. What we should care more about is what kind of mindset the person about to wield great power actually holds, and what stance they will take. Therefore, ten important questions are posed to any candidate for Prosecutor-General:

1. Question 1: Are you willing to publicly declare that you will strictly observe constitutional boundaries and never report individual cases to the President? Will your contact with the President also be strictly limited to public official occasions?
2. Question 2: Have you ever received phone calls lobbying on behalf of a case? If you have received any, did you log them?
3. Question 3: During your tenure as a Chief Prosecutor, how did you operate the principle of prosecutorial unity? Was the written command system implemented?
4. Question 4: Do you support the principle of "separation of judges and prosecutors," and the enactment of separate Organic Act of the Prosecutors Offices and Prosecutors Act?
5. Question 5: Do you support the abolition of the Special Investigation Division? What are your reasons?
6. Question 6: Regarding the operation of the Prosecutor Personnel Review Committee, how should power be decentralized with the Minister of Justice?
7. Question 7: What are your views on the assignment of cases in frontline district prosecutors' offices and the operation of prosecutors' meetings?
8. Question 8: Do you support the independent and separate training of judges and prosecutors? What actions will you take in your potential capacity as the Vice Chairperson of the Academy for the Judiciary?
9. Question 9: What are your views on abusive prosecutions and appeals? How should prosecutors who abuse their power be held accountable? Do you think the current disqualification mechanism is sufficient to weed out incompetent prosecutors? How can the removal of incompetent prosecutors be effectively implemented?
10. Question 10: What concrete actions do you propose to address the low conviction rate of prosecutors?

Declare Strict Observance of Constitutional Boundaries

Although the Prosecutor-General is nominated by the President, the Prosecutor-General must be subject to the consent of the legislature. This implies that the Prosecutor-General is the "people's Prosecutor-General," not the President's; the President is not the Prosecutor-General's "boss," but the people are.

Therefore, the primary duty of the Prosecutor-General is to safeguard the working space of prosecutors so that they are free from interference by any privileges or external forces. Not reporting individual cases to the President and not privately contacting the President are merely the most basic requirements.

If one dares not even declare this, apart from showing a complete lack of backbone, it also indicates that there is a possibility of future interference by the President or other high-ranking political figures. How could the public bear to elect such a Prosecutor-General? Conversely, if one has the courage to make a public declaration, it is not only a concrete commitment to the people, but also sends a clear message to politicians: "Don't even think about it!"

How to Handle Lobbying?

According to the Ministry of Justice's internal "Statistical Table on the Registration of Lobbying and Intercession," lobbying cases in each quarter do not exceed three, which is far from our expectations. If our imagination is not inaccurate, there must be something wrong with the system.

Paragraph 1, Article 5 of the "Directions for the Registration and Inspection of Lobbying and Intercession in Executive Yuan and its Subordinate Organs and Agencies" stipulates: "Lobbying and intercession events shall be registered by the person lobbied with the political ethics office of their subordinate organ within three days." The Prosecutor Evaluation Commission also concluded on this basis that when Chen Shou-huang received an inquiry call, his failure to register it in a timely manner constituted a dereliction of duty.

In reality, the fatal flaw of these "Registration Directions" is that Paragraph 2 defines "lobbying and intercession" as: "Lobbying and intercession refers to making requests, not following statutory procedures, for oneself or others to the targets regulated in the preceding point, and such requests are likely to violate laws and regulations, business rules, or contracts."

This is a clumsy legislative technique. One might ask: once the person lobbied registers the matter, it is tantamount to declaring that this is an illegal event? Taking Chen Shou-huang as an example, registering it would mean that the Chief Prosecutor believes the Legislative Speaker engaged in illegal lobbying. If no subsequent prosecution follows, his own future would also be jeopardized. One must ask, under circumstances where subsequent risks are difficult to assess and may even endanger oneself, isn't registration a system design that goes against human nature?

The system design of the "Registration Directions" should first exempt the reporting party from the obligation of judgment. Intercession or care-showing is sometimes for personal gain and sometimes for social public interest; they are often blurred, difficult to distinguish, and separated by a very thin line. Only by first exempting the reporting party from the obligation of judgment is it possible to increase their willingness to register, protecting the reporting party first. If it is later proven that the inquiring party did not break the law, both sides are given a way out, avoiding a zero-sum game.

Imagine that those who dare to and are able to call a Chief Prosecutor can be counted on one hand. The current registration system is tantamount to forcing the Chief Prosecutor to jump out and "go head-to-head" with other "big figures," making subsequent political effects and risks difficult to evaluate. Only by turning registration into a "routine administrative record," "mixed" among general petitions and appeals, can the sensitivity of registration be reduced, the willingness to register be enhanced, and true transparency be achieved. "Care, intercession, lobbying, persuasion"—all names do not matter; just lay them out in the sun and do it openly.

How to Operate Prosecutorial Unity?

Prosecutor Ch'en Jui-jen explicitly pointed out in an article that, based on his experience, senior prosecutors often "use the name of prosecutorial unity to practice lobbying." As early as 1998, the Reform Association of Prosecutors launched the "Sunshine Bill on Prosecutorial Unity," and in the same year, the Ministry of Justice also promulgated the "Implementation Plan for the Transparency of the Prosecutorial Unity System."

Examining its contents, it includes three parts: 1. The scope in which the Prosecutor-General may exercise command and supervision includes "the right to take over and transfer cases" and "the right to command and supervise cases" (Articles 63 and 64 of the Court Organization Act). The right to command and supervision is scoped within "prosecutorial affairs centered on indictment or non-indictment." 2. The timing of command: (1) to unify the prosecution standards; (2) improper or biased performance of duties; (3) having different opinions on the superior's order; (4) appropriateness of handling by other prosecutors. 3. The method of command: oral first, followed by written.

After the "Judges Act" was passed and implemented on July 6, 2012, "prosecutorial unity" was embodied in law with further details. Paragraph 2 of Article 92 clearly stipulates that when the Prosecutor-General exercises the "right to command and supervise cases," if it involves "the exercise of the power of compulsory disposition," "the determination of criminal facts," or "the application of law," it shall be done in "written form with reasons."

Conversely, when a subordinate prosecutor disagrees with the written order, it means, "In this case, I cannot proceed with the handling," and they may state their reasons in writing, requesting the superior to "handle it themselves" or "hand the case over to someone else to handle." If the superior wishes the prosecutor to continue handling the case, they must modify the original order.

In fact, issuing commands in writing can fulfill the function of "prosecutorial unity" and serves as a systematic design that protects both parties and clarifies roles and responsibilities. If commanding a case is done for the public interest, leaving a written record achieves transparency and demonstrates that there is nothing untoward going on. At the same time, it can protect the subordinate prosecutor's working space, and the Prosecutor-General does not need to take the blame for subordinates, appropriately clarifying internal responsibilities.

However, "laws cannot enforce themselves." The aforementioned good laws and intentions have long taken effect and been implemented. Taking Huang Shih-ming and Chen Shou-huang as examples, both involved issues such as "the exercise of the power of compulsory disposition (wiretapping)," "the determination of criminal facts," or "the application of law (whether to appeal, whether to prosecute)." The two superior officials apparently turned a blind eye to Article 92 of the Judges Act. With such a Prosecutor-General and High Prosecutors Office Chief Prosecutor, how can other subordinate chief prosecutors be expected to do better?

Implementing the "Separation/Subordination of Judges and Prosecutors"

On July 1, 1980, the system of "separation/subordination of prosecutors" began to be implemented. The then-"Ministry of Judicial Administration" was renamed the Ministry of Justice, governing prosecutors' offices at all levels, while courts were separated and placed under the Judicial Yuan. Since then, judicial power has gradually broken away from the control of executive power, and its independence has grown increasingly.

From the perspective of the separation of powers, the fact that courts representing judicial power were controlled by executive power for a long time was a manifestation of poor rule of law and naturally violated judicial independence. Unless our country wishes to return to an authoritarian regime, the departure of the courts from the administrative system was only a matter of time. What remained was the question of whether prosecutors can be considered "judicial officials."

As a result of democratization over the past twenty years, many decision-making powers such as detention, search, and wiretapping have been handed over to judges. This has made prosecutors—who were originally on an equal footing with judges—feel psychologically uncomfortable. However, due to the inherently different attributes of "passive judges" and "active prosecutors," based on the principle of checks and balances of powers, the institutional and infrastructural separation of prosecutors and judges is an essential necessity by nature.

Fairly speaking, when the recruitment and training of prosecutors are not vastly different from those of judges, denying prosecutors the same institutional guarantees as judges actually violates the "principle of protection of reliance interests." Therefore, the examination and hiring systems should be separated while protecting the reliance interests of prosecutors.

Consequently, once these interfering factors are removed, enacting separate "Prosecutors Act" and "Organic Act of the Prosecutors Offices" in order to implement the separation of judges and prosecutors should be necessary.

Should the Special Investigation Division Be Abolished?

The establishment of the Special Investigation Division has its historical background and causes. Because the public deeply detests black-gold politics and expects prosecutors to crack down on black gold and privileged wrongdoing, the Special Investigation Division was a political platform promise made by Chen Ting-nan when he took office as Minister of Justice in 2000. At that time, it was not established in the Supreme Prosecutors Office, but rather divided among the High Prosecutors Office and its branch offices.

It was not until 2006, when the Court Organization Act was amended, that the Prosecutor-General became nominated by the President, appointed by the Parliament, and granted an independent term guarantee. At the same time, prosecutors could be seconded from across the country, and the Special Investigation Division was since established exclusively under the Supreme Prosecutors Office, controlled solely by the Prosecutor-General.

The establishment of the Special Investigation Division was, in fact, to "strengthen" the independent investigative powers of prosecutors. Ideally, this Prosecutor-General, generated through democratic procedures and accepted by all parties, would directly lead the Special Investigation Division—which boasted ample personnel—with the courage to combat the powerful and elites, purge corruption, and at the same time maintain the objectivity and independence of prosecutors in investigating cases, free from the interference of political privileges.

Regrettably, since the establishment of the Supreme Prosecutors Office Special Investigation Division, two successive Prosecutors-General have faced consequences: Ch'en Ts'ung-ming was impeached by the Control Yuan, and Huang Shih-ming was prosecuted by the District Prosecutors Office. The public has seemingly not reaped the benefits of centralized and expanded prosecutorial powers, but rather suffered the institutional problems of "absolute power corrupts absolutely" firsthand.

Having learned lessons from two successive Prosecutors-General, many commentators believe that the historical mission of the Special Investigation Division has been fulfilled. If it is not abolished, there remains the danger of getting embroiled in political struggles. It would be better to return to the regular track and strengthen the capacity of district prosecutors' offices in investigating corruption. Moreover, with the establishment of the Agency Against Corruption, duplicating structures seems unnecessary, as it only causes resource waste and overlapping roles and responsibilities.