Ten Questions for the Prosecutor-General (Part 2)

On April 16, the Judiciary and Organic Laws and Statutes Committee of the Legislative Yuan conducted a qualification review of Prosecutor-General nominee Yen Ta-ho. During the review, he heavily emphasized: "I will never report individual cases to the President; I will decide whether or not to meet the President based on whether the occasion is a diplomatic or social public event; and if the President invites me to dinner privately, I probably would not go."

He stated that if the Special Investigation Division (SID) were still under the Supreme Prosecutors Office, he would definitely "strictly adhere to procedural justice and the rules of evidence when handling cases; implement non-disclosure of investigations; and adopt a team-based approach to case handling rather than a single-line command, because individual wisdom is limited and prone to mistakes."

Regarding the abolition or retention of the SID, he believes: "The SID still has a reason to exist currently, but because it lacks a remedy system and pushes the Prosecutor-General onto the front lines, it should be relocated to the Taiwan High Prosecutors Office." He also opined that "the system of the SID is not wrong; the fault lies in human operation, and the ultimate goal should be to abolish the SID within five to six years."

Furthermore, "ethically speaking, Minister of Justice Lo Ying-sheh is the superior; there will be no issue of 'two suns,' and I will strictly observe the boundaries between prosecution and administration."

Yen Ta-ho positively responded to our first question and provided a concrete guarantee that he would never report individual cases to the President. He also essentially answered our fifth question by supporting the ultimate abolition of the SID; however, his stance on questions regarding "how to handle lobbying, the principle of prosecutorial unity, and the separation of adjudication and prosecution" remains unclear. Next, let us continue asking the Prosecutor-General nominee the remaining important questions from the top ten.

• Question 6: Regarding the operation of the Prosecutor Personnel Review Committee, how will power be decentralized between the Prosecutor-General and the Minister of Justice?
• Question 7: What are your views on the assignment of cases in frontline local prosecutors offices and the operation of prosecutors meetings?
• Question 8: Do you support the complete independence and separation of the training and cultivation of judges and prosecutors? What actions will you take in your potential role as the deputy convener of the Academy for the Judiciary?
• Question 9: What are your views on abusive prosecutions and appeals? How should prosecutors be held accountable if they abuse their power? Do you consider the current screening mechanisms sufficient to weed out incompetent prosecutors? How can the weeding out of incompetent prosecutors be implemented?
Question 10: What concrete measures do you have to address the low conviction rate of prosecutors?

Prosecutorial Personnel Authority

Prosecutors are vital members of the judicial system, and their professional reputation and dignity must be carefully maintained. Personnel protections are naturally a key focus of this. Through repeated reforms, the "Prosecutor Personnel Review Committee" was established. Several operating principles were considered during the legislation process: first, to emphasize personnel protections regarding a prosecutor's status, remuneration, and promotion so that they remain free from arbitrary interference by external political forces outside the principle of prosecutorial unity, thereby maintaining "external independence"; yet at the same time, consideration must be given to "accountability" to ensure that authority and responsibility correspond, while also maintaining "fairness" in the operation of the system.

The "Prosecutor Personnel Review Committee" is established within the Ministry of Justice and is primarily responsible for personnel matters concerning chief prosecutors or prosecutors at and below the level of the high prosecutors office (excluding prosecutors-general and chief prosecutors), including "appointments, dismissals, promotions, transfers, reassignments, performance evaluations, rewards and punishments, job evaluations, suspension from office, removal from office, and reassignments." It is also responsible for matters such as providing the Minister of Justice with a "recommended list for the selection of chief prosecutors" and "consultative opinions on the transfer of chief prosecutors" (Article 90 of the Judges Act, Article 59-1 of the Court Organization Act, and Article 3 of the Regulations of the Prosecutor Personnel Review Committee of the Ministry of Justice).

Formally speaking, judges also have a personnel review committee where the President of the Judicial Yuan serves as an ex-officio member and chairperson. However, aside from judge representatives, among the 27 members, there are also 3 external scholars and experts (Article 4 of the Judges Act). The high proportion of internal members reflects the high degree of independence of judges, and "slightly consulting" the opinions of external members symbolizes a minimum degree of "accountability" to some extent. Of course, in the absence of a balancing external mechanism, superiors within the judicial power (such as the President of the Judicial Yuan) may also completely control the personnel authority of judges.

In contrast, the Prosecutor Personnel Review Committee is composed entirely of prosecutors "among themselves," completely lacking an external mechanism. To ensure fairness and impartiality in personnel reviews and accountability for prosecutors, one can only rely on internal members. The risk of this institutional design is that if internal members pander to the wishes of superiors and the Minister (or Prosecutor-General) monopolizes power, the design of extreme external independence is wasted, making the introduction of external members for "checks and balances" necessary.

Looking further at the 17 members of the Prosecutor Personnel Review Committee—comprising 4 members appointed by the Minister of Justice, the Prosecutor-General and 3 members appointed by the Prosecutor-General, and 9 representatives elected by all prosecutors—we can see that the system also incorporates a design for the "division of power" between the Minister of Justice and the Prosecutor-General. Interestingly, the Prosecutor-General is an "ex-officio member," but the Minister of Justice, who ultimately holds the personnel ratification authority, cannot serve as the chairperson and can only designate a deputy minister to do so. Excluding the Minister of Justice from the review procedure places even greater emphasis on the design of "internal checks and balances" than is the case for judges.

In fact, this served as the fuse for the political struggle between Ts'en Yungs-fu and Huang Shih-ming. When the Minister and the Prosecutor-General disagree, it sparks a power struggle. The personnel dilemma for the new Prosecutor-General lies in how to share power with the Minister of Justice during the operation of the Prosecutor Personnel Review Committee. Furthermore, if even the personnel of judges, which heavily emphasizes independence, has an external mechanism, should prosecutors introduce "external members" to a certain extent as an institutional design for internal and external separation of powers to increase "accountability"?

Power struggles themselves are not actually terrifying, as long as the combatants are not acting for private gain, but rather for institutional establishment. Institutional design should be guided by the principles of decentralization, pluralism, and checks and balances, while also allowing talent to flow smoothly within the system. This means that prosecutorial personnel transfers must be effectively linked to a sound direction that promotes the sound operation of the prosecutorial system, which brings us to our final two questions.

How to Resolve Abusive Prosecutions and Improve Conviction Rates?

The last two questions are actually similar in nature: they ask the Prosecutor-General what methods of restraint and response he has for potential abuses committed by prosecutors while handling cases. The most criticized aspects of prosecutorial case handling are abusive indictments and appeals, which naturally lead to low conviction rates. Abusive non-prosecution decisions are simply another side of the same coin; subsequent mechanisms must be designed to deter or hold people accountable for them.

Naturally, prosecutors whose abusive conduct is severe should be weeded out. Following the passage and implementation of the "Judges Act," the current screening mechanism relies primarily on the "Prosecutor Evaluation Commission," but it still requires subsequent impeachment by the Control Yuan and review by the Disciplinary Court of the Judicial Yuan, setting a fairly high threshold. Huang Shih-ming is the most prominent example.

Moreover, if a prosecutor does not receive a disciplinary sanction of dismissal or removal from office, they still have the possibility of returning to office. In other words, the current system can probably only weed out "extremely incompetent" prosecutors; it is truly insufficient to comprehensively elevate the quality of prosecutorial case handling, nor can it resolve the current status quo of abuse of power.

A more effective approach would be to integrate the prosecutorial personnel system with prosecutorial case-handling quality. If the prosecutorial system is compared to a "company," a prosecutor's "case-handling quality" is the company's primary "performance." It is hard to imagine any company failing to consider "performance" when evaluating promotions and personnel matters.

Therefore, rationally connecting the personnel matters handled by the aforementioned "Prosecutor Personnel Review Committee"—including "appointments, promotions, transfers, reassignments, performance evaluations, rewards and punishments, job evaluations, suspension, removal, and reassignments"—with prosecutors' indictment conviction rates, appeal remand rates, and the reversal and remand rates of non-prosecution decisions after discretionary review through objective statistical methods would be the fundamental way to resolve abuse of power and sloppiness in prosecutorial case handling.

A more front-end, direct method involves chief prosecutors exercising their "right to take over cases, right to transfer cases," or "right to direct and supervise cases" in writing (Articles 63 and 64 of the Court Organization Act) via "prosecutorial unity" before a case results in an abusive indictment or non-prosecution decision, thereby ensuring case-handling quality or pre-emptively unifying case-handling standards. At its root, the reason prosecutors are bound by "prosecutorial unity" is to curtail the possibility of abusing power or wrongfully harming the people under the premise of "protecting human rights." This is the true essence of "prosecutorial unity."