Should President Lai Hao-min Apologize to All Prosecutors?

The annual Judicial Day has arrived. I remember a news report by the China Times on January 12, 2012: President of the Judicial Yuan Lai Hao-min stated yesterday that he would promote the "de-courtification" of prosecutors' offices; then-Political Deputy Minister of the Ministry of Justice, Ch'en Shou-huang, emphasized that the Ministry of Justice "cannot accept this and firmly opposes it." He believed that judicial reform is complex with many issues to be tackled, and "there is no need to rush into changing the names of other agencies first." President Lai talked endlessly yesterday about how the "de-courtification" of prosecutors' offices is a key legislative focus for the Judicial Yuan this year, greatly embarrassing invited guests such as Minister of Justice Tseng Yung-fu and Political Deputy Minister Ch'en Shou-huang. Most prosecutors strongly disapproved of this. As one senior prosecutor remarked, if the Judicial Yuan flaunts this as an "achievement" of judicial reform, "then judicial reform is cheap indeed."

If this news report is correct, didn't President Lai poke a hornet's nest and offend a large number of prosecutors? Anyone who understands Taiwan's judicial ecosystem knows that ever since the separation of judges and prosecutors (prosecutors' offices) in 1980, the Judicial Yuan and the Ministry of Justice—or the judiciary and the prosecution—have long suffered from "institutional confrontation," maintaining a delicate dynamic of simultaneous coalition, competition, and antagonism. President Lai's remarks are bound to provoke a strong reaction from the prosecution system.

President Lai, You Misspoke!?

Indeed, the ROC Prosecutors Association immediately published an article on January 16, 2012, titled "President Lai, You Misspoke! Please Apologize to All Prosecutors—The ROC Prosecutors Association's Statement of Protest Against the Judicial Yuan." The gist was: "We protest President Lai's inappropriate remarks that severely deviate from facts, and demand an apology to all prosecutors for this slip of the tongue!" The main content reads:

We have always believed that the roles played by judges and prosecutors in judicial proceedings are like the two wheels of a chariot, and their responsibilities for judicial reform should be shared for better or worse; without a sound prosecution system, independent and impartial adjudication is impossible; and if adjudication loses the public's trust, prosecutors cannot enjoy glory alone. Judges and prosecutors are legal professionals in the same boat; only when both the judiciary and the prosecution are fully capable of self-reflection, weeding out the corrupt and purifying the system to strive for reform, can they gain public trust and support. We eagerly hope that President Lai can stand at the high ground of "justice for the people," respect the procuratorial system established by the state for prosecutors, cast aside prejudices against the prosecution system, and work more attentively with the Ministry of Justice to deliberate on "perceptible" judicial reform strategies, thereby creating a new judicial horizon of triple-wins for the courts, prosecutors' offices, and the people!

In response, President Lai stated on the Judges Forum: Hao-min has always valued the interaction between the judiciary and the prosecution, and is committed to maintaining a benign relationship between them to jointly promote the philosophy of judicial reform for all citizens. Following our court's year-end press conference on January 11, 2012, in response to questions from some media outlets regarding his views on the de-courtification of the names of prosecutorial organs, Hao-min expressed the following viewpoints: (1) The separation of adjudication and prosecution is a consistent judicial reform stance of the Judicial Yuan; (2) Because citizens frequently receive subpoenas from district prosecutors' offices and mistakenly go to the courts, causing confusion, there is indeed a need to distinguish the judiciary from the prosecution through their names; (3) Therefore, the de-courtification of the names of prosecutorial organs can prevent public confusion and clarify the attribution of responsibilities between the judiciary and the prosecution. There was no statement that "many citizens' dissatisfaction with prosecutors is entirely mistaken as judicial malpractice, stigmatizing judges." We express our deep regret over the misunderstandings generated by your association.

The Roles of Prosecutors and Judges

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Is the assertion by the Prosecutors Association that "judges and prosecutors are in the same boat" and that "the roles played by judges and prosecutors in judicial proceedings are like the two wheels of a chariot" really true? To answer this question, we must begin with the establishment of the prosecutor system!

Citizens who have watched the mythological stories and dramas of Judge Pao (Pao Ch'ing-t'ien) have probably never seen anyone play the role of a "prosecutor." This is because that upright magistrate simultaneously embodied multiple roles—police chief (or court bailiff), prosecutor, judge, and prison executioner—all powers concentrated in one person. In fact, traditional Chinese law presupposed the virtue of local officials, combining what modern Western law terms the powers of prosecution and adjudication, and entrusting them to the local "father-and-mother official" who loved the people like his own children. This adopted the so-called "inquisitorial system," making it unnecessary to establish specialized prosecutors dedicated to "acculturation or accusation." This situation of a single person undertaking multiple tasks such as criminal prosecution, trial, and execution is not unique to Chinese society. Prosecutors, established on the basis of the separation of powers (the separation of adjudication and prosecution), emerged around the world successively in the 18th and 19th centuries, driven by humanity's painful historical lesson that "power corrupts, and absolute power corrupts absolutely."

The modern prosecutor system is the "child of revolution" and the "legacy of the Enlightenment." It was born during the French Revolution in 1789, formally established by the Code of Criminal Instruction of 1808 under Napoleon, and subsequently took root and flourished everywhere as Napoleon marched across Europe. The main purposes for continental European nations to create the prosecutor system were: (1) To abolish the past inquisitorial system, so that judges no longer monopolized both criminal prosecution and trial work. Through a model of procedural division of powers, mutual supervision and checks between judges and prosecutors would ensure the objectivity and correctness of the exercise of criminal judicial power; (2) To control the legality of police activities through prosecutors strictly trained in and bound by the law, escaping the nightmare of a police state; (3) To guard the law so that objective legal intent permeates the entire criminal proceedings. Beyond prosecuting crimes, the so-called objective legal intent places even greater importance on protecting civil rights.

What are the duties of a prosecutor? Although Chapter 7 of the Constitution of the Republic of China on "Judiciary" (Articles 77 to 82) explicitly defines the duties and the protection of the status and position of judges, it does not contain a single word explaining prosecutors. According to Article 60 of the Court Organization Act: "The duties and powers of a prosecutor are as follows: 1. Executing investigations, instituting public prosecutions, executing public prosecutions, assisting private prosecutions, assuming private prosecutions, and directing the execution of criminal judgments; 2. Executing duties prescribed by other laws," it is evident that prosecutors are principally engaged in criminal investigations, the filing of public prosecutions, and the execution of judgments. That is to say, under the "accusatorial principle," prosecutors act as the prosecuting party and decide whether to institute a public prosecution. As for the "execution of duties prescribed by other laws," it primarily involves playing the role of the "guardian of the public interest." For instance, Article 36 of the Civil Code stipulates that prosecutors may petition the court to dissolve legal persons that violate laws or public order.

In practice, the primary duties of prosecutors remain criminal investigation, prosecution (instituting public prosecutions), courtroom argument (executing public prosecutions), appeals, and the execution of judgments. Simply put, when a prosecutor learns of suspected criminal activity through a victim's complaint, a report by a citizen or public official, the perpetrator's surrender, or other circumstances, they shall immediately commence a criminal investigation. If the investigation concludes that there is no suspicion of criminal activity against the defendant, a disposition of non-prosecution shall be rendered; if there is suspicion reaching the threshold for prosecution, a public prosecution shall be instituted before the court; if there is suspicion but certain conditions are met and the fulfillment of specific obligations is required (such as ordering the defendant to apologize to the victim, pay compensation, or perform community service), a conditional suspension of prosecution may be granted. Upon the expiration of the suspension period without revocation, the defendant ultimately enjoys the benefits of non-prosecution.

Among these, cases in which public prosecutions are instituted are docketed in court, and judges adjudicate the criminal facts prosecuted by the prosecutor based on the principle of "no trial without accusation, and a trial must follow an accusation" (the principle of passive initiation). Prosecutors must appear in court to debate the determination of facts and the application of legal procedures with the defendants and defense counsel. During the fact-finding process, evidence investigation is often required, and the cross-examination of witnesses by the prosecution and defense is one of the most vital tasks. In the final stage of oral argument, prosecutors may formally petition for specific sentences against the defendant depending on the circumstances; however, the prosecutor's sentencing recommendation is non-binding and merely serves to draw the judge's attention. After the judge renders a judgment, if the prosecutor or defendant is dissatisfied, both may appeal in accordance with the law. Once the case is not appealed or all legal remedies are exhausted and the judgment becomes final, the case is transferred back to the prosecutors' office, where an execution prosecutor enforces the judgment's outcome based on whether it is guilty or not guilty.

Are Judges and Prosecutors in the Same Boat?

As this explanation demonstrates, modern criminal procedure systems adopt the "accusatorial principle," the foundational rule of which is "no judgment by a judge without an accusation by a prosecuting party," known as the principle of passive initiation ("no trial without accusation, and a trial must follow an accusation"). Consequently, prosecutors naturally become the gatekeepers controlling the entrance to judicial adjudication, bearing a heavy responsibility. From this point on, judges are restricted to a passive role because without the prosecutor's investigation and prosecution, judges have no basis to adjudicate. Since adjudication and prosecution are separated (established separately), they maintain a relationship of the separation of powers and checks and balances. Prosecutors can even appeal if they disagree with a court judgment. Why then is there the issue of "de-courtification of prosecutors' offices" raised by President Lai?

It turns out that although Article 61 of the Court Organization Act explicitly stipulates that "Prosecutors shall independently exercise their duties vis-à-vis the courts," because various courts and prosecutors' offices usually share office buildings (residing in the same building), and every prosecutors' office appends the name of a specific court to its title (such as the "Taipei District Prosecutors Office"), it is hardly surprising that the results of the "2010 General Public Survey on Judicial Awareness" conducted by the Judicial Yuan showed: only 18% of the general public fully understood the administrative subordination and jurisdictional scope of judges and prosecutors. Among them, 81% answered the jurisdictional scope correctly, but only 19% correctly answered the administrative subordination, with as high as 72% of the public mistakenly believing that prosecutors are subordinate to the Judicial Yuan.

Are Prosecutors Not Subordinate to the Judicial Yuan? No, They Are Not!

The organizational principles of our country's prosecutorial organs, since the enactment of the "Law on the Organization of Courts" in the late Qing Dynasty following Japan's emulation of continental European legal systems, have adopted a top-down hierarchical structure commonly referred to domestically as the "principle of prosecutorial unity." This is completely different from the emphasis on the "principle of judicial independence" for judges' duties. Therefore, ever since our country established a prosecutorial system, prosecutors have been subordinate to the executive branch (the Ministry of Justice). Under this organization structured along executive lines, superiors command and subordinates obey; superior prosecutors possess not only the power of functional supervision over subordinate prosecutors, but also the powers of avocation and transfer, while subordinate prosecutors bear corresponding obligations of obedience and reporting. However, to prevent political forces from intervening in prosecutorial affairs, the Minister of Justice only holds the power to issue directives regarding "prosecutorial administrative affairs" (such as budget compilation, allocation, and personnel), whereas directives concerning "prosecutorial affairs" are wielded by the Prosecutor-General of the Supreme Prosecutors Office.

The History of the Separation of Adjudication and Prosecution

In fact, misunderstandings that prosecutors are subordinate to the courts or the Judicial Yuan are not limited to the general public. Shortly after taking office, the author's judicial assistant once mistakenly thought that the "Taipei District Prosecutors Office" was an internal unit of the "Taipei District Court," and even heard a defense attorney address the author in court as: "Your office's prosecutor's indictment." The root cause of this problem, aside from nomenclature, is also related to our country's judicial and prosecutorial history. The explanation of the history of the Supreme Prosecutors Office listed on its official webpage is as follows:

Under our old system in the past, administration subsumed the judiciary. During the late Qing reform, the official system of the Supreme Court (Dali Yuan) was established in the 33rd year of Kuang-hsu, changing the original Dali Si into the Dali Yuan, which served as the highest court of final appeal nationwide, and establishing the Supreme Procuratorate in opposition to it, equivalent to today's prosecutors' office. In the 14th year of the Republic (1925), the Nationalist Government was established in Guangzhou, setting up the Dali Yuan paired with the Supreme Procuratorate.

In the 16th year of the Republic (1927), the National Government established its capital in Nanjing, and on October 25 promulgated the "Provisional Regulations on the Organization of the Supreme Court." According to Article 6 of these regulations, the Supreme Court shall have one Chief Prosecutor and five Prosecutors to handle all matters concerning prosecution in accordance with the law. On November 17, 17th year of the Republic (1928), the National Government promulgated the Organic Act of the Supreme Court, stipulating in Article 6 that a prosecutors' office shall be attached to the Supreme Court. The current name of the Supreme Prosecutors Office first appeared in statutory text... In terms of judicial levels, it remained on par with the Supreme Court as a court of third instance, but in the administrative system, it was subordinate to the Ministry of Judicial Administration under the Executive Yuan, whereas the Supreme Court was subordinate to tabularly to the Judicial Yuan.

Since the implementation of the separation of adjudication and prosecution on July 1, 1980, the Supreme Prosecutors Office, along with the Taiwan High Prosecutors Office and various levels of prosecutors' offices under its jurisdiction, has been formally subordinate to the Ministry of Justice. Courts at the high court level and below, which were formerly subordinate to the Ministry of Judicial Administration, were reassigned to be subordinate to Taiwan's Judicial Yuan. This ushered our country's judicial system into a new realm, with the hope of jointly achieving the sacred mission of upholding legal discipline and promoting the rule of law.

From the above explanation, it can be seen that before the "implementation of the separation of adjudication and prosecution on July 1, 1980," courts at the level of the Taiwan High Court and below were originally subordinate to the Ministry of Judicial Administration (today's Ministry of Justice). In other words, after constitutional government was implemented in the 36th year of the Republic (1947), although Article 77 of the Constitution explicitly stipulated that "The Judicial Yuan shall be the highest judicial organ of the State and shall have charge of civil, criminal, and administrative litigation trials and the discipline of public functionaries," the courts at all levels in charge of civil and criminal trials still followed the old system, supervised by the Executive Yuan's Ministry of Judicial Administration, causing the Taiwan High Court to remain subordinate to the Executive Yuan.

That courts tasked with judicial trials were subordinate to the executive branch clearly conflicted with the spirit prescribed in Article 77 of the Constitution. After Grand Justices of the Judicial Yuan rendered Interpretation No. 86 on August 15, 1960, clarifying that: "Article 77 of the Constitution provides that the Judicial Yuan is the highest judicial organ of the State and has charge of civil and criminal litigation trials, which refers to the civil and criminal litigation trials of courts at all levels. Since the high courts and branch courts at all levels separately have charge of civil and criminal litigation trials, they naturally should also be subordinate to the Judicial Yuan," the former Ministry of Judicial Administration accelerated the work of separating adjudication and prosecution. Finally, the separation of adjudication and prosecution was formally implemented starting July 1, 1980 (subordinating them to different organizational departments). Courts at the high court level and below were accordingly reassigned to the supervision of the Judicial Yuan, opening a brand-new page in our nation's judicial history, rendering the judicial system more sound, and giving fuller play to the functions of adjudication and prosecution.

The De-Courtification of Prosecutors' Offices is a Consensus Across the Ruling and Opposition Parties

That being said, should courts and prosecutors' offices split up? In fact, legislators had already noticed this issue. As early as November 2006, fifty-five cross-party legislators, including Lu Hsueh-chang, Lei Chien, Liu Sheng-liang, Yu Ching, and Kuo Lin-yung, proposed amendments to the Court Organization Act, advocating for the de-courtification of prosecutors' offices. The main rationale for the proposal was: since the separation of adjudication and prosecution in 1980, prosecutors' offices at all levels have been independent organs subordinate to the Ministry of Justice, maintaining only business interactions with the Judicial Yuan or various courts without any subordination relationship. Moreover, the duties of judges and prosecutors differ, as do their roles and functions, making separate positioning necessary. If the legislative amendment succeeds, the current Taipei District Prosecutors Office will be renamed the Taipei District Prosecutors Office; the Taiwan High Prosecutors Office will be renamed the Taiwan High Prosecutors Office; and the Supreme Prosecutors Office will become the Supreme Prosecutors Office. Unfortunately, this proposal failed to complete the legislative process.

The reason for this lies in the opposition of the Ministry of Justice. The primary reason for the Ministry of Justice's opposition was not what Political Deputy Minister Ch'en Shou-huang told President Lai—namely that "the public's legal knowledge has improved and there will be no misunderstanding or confusion between the two units, making the 'de-courtification' of prosecutors' offices unnecessary." Rather, the Ministry of Justice and most prosecutors worried that once prosecutors' offices were "de-courtified," the next step for legislators or public opinion would inevitably be to promote the "de-judicialization" of prosecutors. By then, prosecutors would lose their "judicial officer" attribute, making political interference in prosecutorial affairs even easier, and likely stripping away the "judicial allowance" included in their existing salaries along the way. Among the salaries of judges and prosecutors, the base salary is no higher than that of ordinary civil servants; what is high is the judicial allowance. Wouldn't this mean losing both power and money?

It turns out that, following the practices of many countries in the continental European legal system, our country acknowledges that prosecutors possess the attribute of "judicial officers" and collectively refers to judges and prosecutors as "judicial officers." Among these, Judicial Yuan Interpretation No. 13 elucidated: "The judges referred to in Article 81 of the Constitution refer to the judges of Article 80 of the same, and do not include prosecutors. However, the protection of tenured prosecutors, pursuant to Article 82 of the same and Paragraph 2, Article 40 of the Court Organization Act, is identical to that of tenured judges, except for transfers." The purpose is to protect the personal and functional independence of prosecutors from improper interference by any external forces.

Additionally, the Personnel Act for Judicial Personnel, enacted in conjunction with the policy of separating adjudication and prosecution, stipulates in Article 3 that judges and prosecutors of all levels of courts and prosecutors' offices all belong to "judicial officers." Meanwhile, Articles 9 and 27 of the Act specify that individuals who pass the judicial officers examination may be appointed as judges or prosecutors after undergoing judicial officer training and studies. As for training matters, a training committee is established jointly by the Judicial Yuan, the Examination Yuan, and the Executive Yuan to determine training policies, training plans, and other important training-related matters, which are then carried out by the Ministry of Justice Judges and Prosecutors Training Institute. According to the Rules for Judicial Officer Training of the Ministry of Justice Judges and Prosecutors Training Institute, the judicial officer training period is set at one year and six months to two years. Those who pass the training grades are distributed by the Judicial Yuan and the Ministry of Justice to serve in various district courts or prosecutors' offices in accordance with relevant regulations.

How is it decided whether those who pass judicial officer training should be appointed as judges or prosecutors? The current practice is for trainees to fill out their preferences in order based on their graduation scores. For those who cannot get their wish, since Article 17 of the Personnel Act for Judicial Personnel explicitly stipulates that "Regulations on the mutual transfer of judges and prosecutors shall be jointly prescribed by the Judicial Yuan and the Executive Yuan," the Judicial Yuan and the Ministry of Justice handle mutual transfers of judges and prosecutors every year. In the past, especially before the separation of adjudication and prosecution, the judiciary and prosecution were as one family; personnel transfers for judges and prosecutors were uniformly handled by the Ministry of Judicial Administration. It was common to see individuals constantly shifting between judge and prosecutor roles, which fostered the illusion that judges and prosecutors were one big family.

Proud to be a Member of the Prosecutorial Ranks

Judges and prosecutors are indeed different in terms of roles, functions, and ethical boundaries, and they even maintain a relationship of supervision and checks and balances. Due to historical factors and naming issues, the majority of citizens misunderstand their roles and administrative subordination relationship—this is also a fact. The fundamental solution is naturally the "de-courtification" of prosecutors' offices. More than forty years have passed since the implementation of the separation of adjudication and prosecution, yet the reform remains unfulfilled. The problem naturally lies in the fact that the judiciary and the prosecution share a common origin—meaning they pass the same judicial officer examination and undergo centralized training together, generating a cohort-based ethical culture. Precisely because everyone is bound by personal ties and unable to make a decisive break, the public still cannot distinguish between the judiciary and the prosecution today, always mistakenly believing that a prosecutor's indictment means the defendant has already been convicted, or even mistakenly believing that a prosecutor's sentencing recommendation is the sentence the defendant will receive.

However, once the Judges Act was enacted and passed, promoting diversified channels for the appointment of judges became established policy. In the foreseeable future, a considerable number of judges will come from the ranks of attorneys or scholars. Furthermore, according to Article 7 of the Act, which stipulates that "Initial appointments of judges, aside from direct assignment and employment through passing the judge or prosecutor examination, shall undergo selection and qualification," judges and prosecutors can no longer directly transfer to each other in the future. In other words, when prosecutors apply to transfer to judges, they must pass the screening of the Judge Selection Committee. When reviewed by the Judge Selection Committee, where external members such as scholars, attorneys, and representatives of the Examination Yuan constitute a majority, the review criteria will focus on the candidate's personality traits, moral character, and dedication, thereby reducing the factor of common origin to a minimum. Accordingly, it is evident that in the post-Judges Act era, prosecutors must adjust their mindset and recognize that they should win public trust through their own dedication and teamwork, rather than attaching their professional honor to the empty name of "judicial officer."