Disappointing Prosecutor Evaluations

On the evening of June 13, 2011, I was meeting at the Judicial Reform Foundation with a group of friends long committed to judicial reform. We were all deeply worried that the next day the Legislative Yuan would pass, on third reading, a Judges Act that fell completely short of public expectations, and that night we issued a statement urging the legislature to pull back from the brink.

However, that final anguished appeal could not stop KMT legislators determined to produce a showy achievement for Ma Ying-jeou's reelection campaign, and DPP legislators, for reasons unknown, suddenly decided to give up the fight. The next evening, the Judges Act passed its third reading.

I understand that politics requires compromise, and that sometimes one must accept the logic of "get something first, then improve it." But what was compromised away in the third reading of the Judges Act more than two years ago was precisely what the public expected most from the law: effectively removing unfit judges and prosecutors! Formally, there is indeed now an "oversight and removal mechanism," but is it really any better in substance?

Take the prosecutors recently involved in judicial lobbying, caught up in the September political struggle, and stirring social unrest. One reason the Judges Act was delayed for twenty years was precisely that prosecutors did not want to be treated differently from judges; they wanted a "Judicial Officers Act" and kept obstructing the legislative process. Because prosecutors wield powerful criminal prosecution authority, many legislators were wary of them and simply let the bill sleep in the legislature. In the end, the Judges Act as passed brought prosecutors within its scope, giving them status, pay, and benefits comparable to judges; prosecutors got what they wanted. But what about the "oversight and removal" the public wanted?

The Prosecutor Evaluation Committee established under the Judges Act officially began operating in January 2012. How has it done so far in achieving the system's stated legislative purposes of "enhancing judicial credibility and removing unfit prosecutors"? The answer: it has concluded a total of three cases, two of which were referred to the Control Yuan! Does such a record meet the legislative goals? Does it meet public expectations?

When the legislature deliberated the Judges Act, many knowledgeable people demanded that the evaluation mechanism be appropriately "externalized" and given an independent organization and budget so that it could operate continuously and effectively. Keeping the evaluation mechanism inside the agencies is merely a cosmetic "convenience measure" (in fact, before the Judges Act passed, the Judicial Yuan and the Ministry of Justice already had their own "Judge Evaluation Rules" and "Prosecutor Evaluation Rules"; has anyone heard of them?). Even with outside members added, little effect can be expected.

Why does externalizing the evaluation mechanism matter? Look again at the Prosecutor Evaluation Committee. It sits within the Ministry of Justice; its resources are decided entirely by the Ministry, and even its support staff are Ministry employees. Worse still, the rules on how evaluations should be conducted were also set by the Ministry. Overall, the basic character of the current "Regulations on Implementing Prosecutor Evaluations" is to "make prosecutor evaluations as hard to conduct, and even harder to oversee, as possible." Space does not permit a full discussion, so a simple example will have to do.

Under Article 10 of the Regulations, committee members, staff, other attendees, and anyone who learns of the proceedings through their official duties must keep "the contents of the evaluation decision" strictly confidential, even after the decision has been issued.

Yes, you read that correctly: the contents of the decision are secret! How, then, can the public monitor whether the committee is fair or biased? Under the Regulations, "the results and contents of an evaluation may be appropriately disclosed" only with "the consent of the person evaluated" or "a resolution of the committee." In other words, even if the evaluation concludes that a prosecutor should be disciplined, it cannot be disclosed so long as he does not consent and the committee makes no separate resolution.

How can there be such an outrageous rule!

Ironically, perhaps because the Ministry of Justice itself recognized how absurd the rule is, it chose to "illegally" publish on its official website the only three evaluation decisions issued to date! In fact, whoever published the decisions without a committee resolution may already have committed the criminal offense of leaking secrets.

How can something so absurd happen!

Yesterday, the committee met to hear the evaluation cases against prosecutors Chen Shou-huang and Lin Hsiu-tao, suspected of accepting lobbying from Wang Jin-pyng and Ker Chien-ming. Regrettably, the committee lacked the wisdom to recognize that openness and transparency are vital both to a case of such great public interest and to the public credibility of the evaluation system itself; although the law allowed it to resolve to hold an open hearing, it chose to refuse. Worse, the committee brazenly stripped JRF, which had initiated the evaluation, of its basic procedural right to appear, state its views, and witness the proceedings, and held the hearing in secret behind closed doors. I cannot understand at all what "secrecy" this hearing still needs when all of Taiwan knows these prosecutors were referred for evaluation and even the Taipei District Prosecutors Office has published the indictment of Huang Shih-ming.

Frankly, I am not at all worried that officials will close ranks to protect each other in this case; the evidence that has emerged already allows a reasonable prediction that Chen Shou-huang, Lin Hsiu-tao, and Huang Shih-ming will be disciplined. What truly saddens me is that this committee of legal professionals not only fails to recognize the heavy responsibility it bears, but treats "due process" and "procedural justice" as nothing. For me, having published "An Unprecedented Test for the Prosecutor Evaluation Mechanism" in Apple Daily in mid-September, the evaluation results are not yet out, but the test has already ended in disappointment.

It is time to learn from this painful lesson. What must be done next is not only to push for amending the Judges Act to correct the mistake made in the summer of 2011 and build a truly effective oversight and removal mechanism, but also to thoroughly review the role of prosecutors and the structure of the prosecutorial system, and to enact an independent "Prosecutors Act."