The Unfinished Business of Prosecutorial Personnel Reform

The design of the prosecutorial system is an art. Ultimately, it embodies two conflicting power attributes: executive power and judicial power. The Ministry of Justice is subordinate to the Executive Yuan, and the Minister is the prosecutors' ultimate superior, carrying out policies through the prosecutorial system, which demonstrates the administrative nature of prosecutors. However, the original intention in establishing prosecutors was to check and balance potential police abuses of power. Therefore, prosecutorial power functions to check police power, and from this perspective, it possesses certain judicial characteristics. Of course, whether it is strictly necessary for this check on police power (which is also a form of "executive power") to take the form of a "judicial power" is open to debate. For example, the United States completely disregards this model; prosecutorial power there is purely executive, with police exclusively responsible for investigation and prosecutors exclusively responsible for prosecution. The two are thoroughly separated in function, representing a system of "checks and balances" within executive power itself. However, our country has traditionally viewed prosecutorial power as possessing both executive and judicial attributes. Consequently, the "executive power" represented by the Minister of Justice "should," to a certain extent, be resisted and counterbalanced; the only remaining questions are the degree, scope, and method. This is an old problem, and only within the context of this awareness can the crux of the recent dispute between reform-minded prosecutors and the Ministry of Justice be fully understood.

Prosecutor Tsai Ch'i-wen of the Shilin District Prosecutors Office filed an application for a provisional injunction with the Taipei High Administrative Court on July 13. He argued that, aside from the selection of "Chief Prosecutors," the Minister of Justice has no "right of final selection" over personnel appointments for other prosecutors, and that such appointments must instead be reviewed and approved by the Prosecutor Review Committee before being announced. Because the transfer of personnel under the current batch was imminent, the provisional injunction was filed in the hope of temporarily "freezing" the transfers of first- and second-instance prosecutors. This is to prevent a situation where, once the personnel orders are issued, subsequent relocations and handovers commence, making it absurd to "restore the status quo ante" even if the litigation is won, thereby rendering the lawsuit a waste of effort.

Prosecutor Tsai's application for a provisional injunction made the front-page headlines of print media the very next day, proving that prosecutors' actions still command attention and carry considerable influence. Of course, apart from the immense power of prosecutors, which naturally attracts attention, prosecutors have always maintained an image of legal expertise and certainly do not speak idly; they must have legal grounds. Using the law to "engage in a legal battle" against the Ministry of Justice—an entity specializing in the law—also made the investigative hearing on the 17th much anticipated, promising an exciting legal confrontation.

The Historical Context of Unfinished Business

In fact, this legal battle has been ongoing since long before February 3, 2006, when Article 59-1 of the Court Organization Act was amended to explicitly establish the "Prosecutor Review Committee (PRC)." Prior to the amendment, the "PRC" was treated by the Minister of Justice merely as an "advisory body"; the Minister personally did not attend, sending only the Political Deputy Minister in their place, which was interpreted as an "unwillingness to be bound by the review results."