Why Prosecutors Cannot Live Up to Expectations

Prosecutors are meant to be agents of the public interest, punishing wrongdoing and upholding justice according to law, but why do they repeatedly let the public down? Recently, Judge Lin Meng-huang published an op-ed in Apple Daily pointing out that prosecutors have failed to contribute to social reform, that prosecutorial system reforms have stalled, and that prosecutors who cater to the wishes of superiors are rewarded with promotions. He noted that the crux of the problem lies in the promotion system for prosecutors, which currently fosters a culture of hierarchy, regimentation, and docility within the prosecutorial ranks.

In reality, it is a curious coincidence that many prosecutors handling high-profile cases are precisely those who were lined up for promotion to head prosecutors at the time. This presents certain chief prosecutors with an untraceable opportunity to subtly steer how these cases are initiated. Why do prosecutors' conclusions in high-profile cases so often deviate from public expectations? Why are suspicions and speculations about political interference endless? Perhaps we can find clues in the current prosecutorial promotion system.

Typically, prosecutors in district prosecutors' offices have the opportunity to compete for the position of head prosecutor after 10 years of service, during which they gain experience in various duties. After serving as a head prosecutor for 6 years, they become eligible to transfer to the Taiwan High Prosecutors Office and be considered for the position of chief prosecutor.

Superiors Dominate Promotion Opportunities

However, who gets the fortune of making the shortlist for head prosecutors or second-instance prosecutors is largely decided single-handedly by the chief prosecutor. This is the chief prosecutor's ultimate tool for controlling case outcomes. The chief prosecutor recommends candidates and submits the list to the Prosecutor Personnel Review Committee (the "Personnel Review Committee"). The Personnel Review Committee then plays it safe by vastly expanding the candidate pool—sometimes to as much as three times the number of vacancies—and hands it over to the Cabinet-appointed Minister of Justice to make the final selection. The Minister can cherry-pick from the list without providing any reasons. Consequently, rumors run rampant about individuals seeking patronage, and everyone knows whose protégé or direct subordinate someone else is. Prosecutorial promotions are entirely monopolized by chief prosecutors and the Minister. It is truly an official-advancement chart of ghosts walking by night. The Cabinet uses this tactic to rein in the gateway to the judiciary, manipulating prosecutors in the palm of their hand. Prosecutors who win selection feel no sense of glory, while those who fail lament that they simply lack favor with their superiors. No wonder prosecutorial morale is sluggish and low, with a continuous stream of prosecutors jumping ship.

The establishment of a prosecutorial personnel system must first give prosecutors the motivation to resist improper interference and remote control by the Cabinet. Therefore, the shortlist for prosecutorial promotions should not be dominated by chief prosecutors. Even though in some district prosecutors' offices recommendations are made through meetings of head prosecutors, structurally speaking, head prosecutors remain staff advisors to the chief prosecutor. Furthermore, meetings of head prosecutors lack a statutory basis in organizational law, and their representation is overly narrow; thus, their recommendations are no different from those of the chief prosecutor.

Evaluations Should Be Based on Competence and Performance

Therefore, we can consider allowing qualified and willing candidates to put themselves forward, submitting five written legal documents of their own choosing to express their intent to undergo scrutiny, and applying to the Personnel Department of the Ministry of Justice. In addition, five documents would be randomly selected by computer, and all ten documents would be sealed and distributed to the Personnel Review Committee for review, with committee members scoring the assigned documents anonymously. The Personnel Review Committee would then rank candidates up to three times the number of vacancies. Next, from the aforementioned 10 cases, the candidates would select one case themselves and have another randomly selected, allowing a review of the entire case file to examine the prosecutor's pace and meticulousness in handling cases, courtroom interrogation skills, defense strategies, and debating techniques. Moreover, since head prosecutors carry a heavier caseload—handling one-fourth or one-fifth of what regular prosecutors handle—their evaluation could also encompass records of statements made in various administrative meetings they participated in (both inside and outside the office) to assess their grasp of issues and strategic problem-solving methods. Additionally, as chief prosecutors generally do not handle cases alone, their records in assigning, dispatching, and supporting investigations conducted by subordinates, as well as exercising the authority of the unity of the prosecutorial organ, should be reviewed to assess their meeting-chairing abilities and decision-making power. Following a comprehensive evaluation, candidates numbering twice the vacancies would be ranked, and the list would be forwarded to the Minister for a face-to-face assessment. Based on the candidates' willingness and capability, the Minister would assign reasons and appoint them to various district prosecutors' offices.

The promotion procedure outlined above may be lengthy and time-consuming, but it not only allows for the review of every single case handled by a prosecutor—compelling them to treat every single procedure seriously—it also tests the leadership and command abilities of head prosecutors and chief prosecutors. Prosecutors forged under this system will naturally be able to respond to public expectations without needing to chase the affectionate gazes of chief prosecutors or the Minister. Moreover, this will help implement the documentation of the exercise of command powers under the unity of the prosecutorial organ. In particular, when appointing candidates, the Minister should state reasons to trace their criteria for personnel selection and discernment of talent.