Op-Ed | Ch'en Meng-huang's Ten Demands for Prosecutorial System Reform

The National Conference on Judicial Reform is currently underway in full swing. Looking back at history, those in power have attempted to forge a social consensus and advance reforms by convening judicial reform conferences on several occasions in the constitutional history of the Republic of China. To look no further back than the democratic transition, starting from Lin Yang-kang (林洋港), successive Presidents of the Judicial Yuan—Shih Chi-yang (施啟揚), Weng Yueh-sheng (翁岳生), Lai In-jaw (賴英照), and Rai Hau-min (賴浩敏)—except for Lai In-jaw who never convened one, all held judicial reform conferences of varying scales during their terms. Among them, the 1999 National Judicial Reform Conference exerted the most profound influence on the trajectory of contemporary Taiwanese justice. The birth of this conference stemmed from a joint visit in May 1997 by five legal professional groups to President Lee Teng-hui. In addition to asking President Lee to support and promote the "independence of the judicial budget" into the Constitution, they also hoped President Lee would personally convene a national judicial reform conference. President Lee agreed on the spot and instructed President Shih Chi-yang to consult with the five groups to convene it within half a year. Subsequently, the initiative fell through because the Judicial Yuan disagreed with the civil groups' proposal that "to prevent official manipulation of the conference through voting, official personnel should not constitute a majority in the preparatory committee and the judicial reform conference."

Due to controversies between officials and civilians (or ruling and opposition legal professionals), President Weng Yueh-sheng actively assembled a judicial reform conference after taking office in February 1999. To ensure the smooth convening of the conference, considerable compromises were made regarding the composition of the preparatory committee (6 members each from the ruling and opposition parties, or 3 each from the bench, bar, prosecution, and academia), the conference rules, and the formulation of plenary conclusions. For instance, representatives of the Ministry of Justice opposed deciding on the prosecutorial and criminal litigation systems by majority vote, leading to the creation of a complex mechanism that substantively granted the Minister of Justice a veto power. Because this conference was dominated by legal elites and lacked public participation, it not only fell into parochial turf wars among lawyers, but the legitimacy of its policy formation was also heavily questioned.

The Warning from the 1999 National Judicial Reform Conference

Although many issues remained unresolved, this conference ultimately passed several major resolutions that could never be implemented. Scholars analyzing the dilemmas involved pointed out factors including: a lack of support from the legislative branch, assistance from the political sector, backing from public opinion, a clear legal basis, and a solid research foundation. In other words, due to the disruption of the separation of powers under the Five-Yuan constitutional system, turf wars between the Yuan and the Ministry, school-of-thought (study-abroad background) rivalries, partisan and professional (judges, prosecutors, lawyers) disputes, central-local interest (lawyer association) conflicts, coupled with public apathy toward rule of law and judicial reform issues—with no votes to be won, no resources to allocate, and no lobbying permitted—politicians cast it aside like worn-out shoes, and consequently, many judicial reform bills suffered legislative delays. It was not until President Tsai Ing-wen stated in her inauguration speech on May 20, 2016, that "The judiciary is inaccessible to the people and not trusted by the people" and "We will convene a National Conference on Judicial Reform in October this year, allowing the public to actually participate and bringing in social forces to jointly promote judicial reform," that a new window of opportunity for judicial reform was opened in our country.

I entered the judicial system only after the first party turnover and thus missed the 1999 judicial reform conference. Through the two-volume Verbatim Records of the National Judicial Reform Conference published by the Judicial Yuan, one can find that while participating commissioners reached consensus on many issues, there were also many fierce clashes and roll-call votes. Most notably, issues involving prosecutorial powers, the separation of the bench and the prosecution, and reforms to the criminal litigation system were the most controversial. Judging from the roll-call voting records, a majority of members on individual issues either supported the position of the Ministry of Justice or the claims of the Judicial Yuan, not entirely influenced by their country of study or their positions (for instance, some judges also supported the Ministry of Justice's stance). Conversely, prosecutor representatives from the Ministry of Justice consistently voted alike on related issues—defending prosecutorial power and supporting the Ministry's claims. On the surface, this appeared to be prosecutorial solidarity and strong cohesion, but in reality, it highlighted an institutional self-interest. In the end, although the vast majority of delegates voted in favor of issues involving changes to prosecutorial power, such as "adopting the system of non-transfer of indictment case files and evidence" and "strengthening checks and balances on prosecutors' non-prosecution dispositions," these failed to become conference conclusions because the conference rules granted the Minister of Justice veto power, which was exercised by Minister of Justice Yeh Chin-fong (葉金鳳).

From Reforming the Supreme Court to Reforming the Prosecutorial System

As part of Chinese society, Taiwan has for over two millennia maintained a social consciousness of "official-centrism." We have never engaged in serious discussions on why judicial power should be independent of executive power, nor have we made arrangements distinct from executive power regarding the selection standards, exercise of power, and internal administrative management models of judicial personnel. Furthermore, Taiwan's society experienced authoritarian rule, yet following its democratic transition, it has never diligently pursued transitional justice. This means we could not purge judges and prosecutors after democratization in the manner of Eastern European countries. Consequently, over my dozen years in adjudication, I have deeply felt that many judges who determine the appearance of the law and prosecutors who act as representatives of public justice do not know how to guard the proper boundaries of power under constitutional separation of powers. They fail to use legal rationality to restrain their inner zeal for substantive justice, nor have they internalized the ideals of the rule of law in Western legal culture—such as legal supremacy, liberty, equality, checks and balances, and the principle of legality—into their own professional creeds. Instead, they continue traditional Chinese societal conventions of "bureaucracy" and "inbreeding," constantly prioritizing the defense of official power and serving as the guard machinery for those in power.

Facing such historical collective karma and judicial dilemmas, forward-thinking individuals in the legal community naturally strive hard for reform. Adhering to my belief that "to straighten others, one must first straighten oneself," I joined a group of judicial colleagues in 2012—taking advantage of a personnel change in the President of the Supreme Court—to launch the "Reform the Supreme Court" petition campaign, subsequently meeting with then-President Ma Ying-jeou. With political backing, the Supreme Court's "confidential case-assignment" system, which former Grand Justice Wu Keng (吳庚) deemed a "national disgrace" and which had existed for over 60 years, was finally abolished in one fell swoop. Of course, I am aware that the chronic ailments of Taiwan's judiciary are systemic and structural problems involving the bench (courts), the bar (prosecution), the bar (attorneys), and academia (legal circles). If Taiwan's judicial predicament is to be resolved once and for all, we must start upstream with prosecutorial, defense, and academic reforms.

For over a decade, I have worked in criminal adjudication, primarily reviewing the existence of criminal facts prosecuted by prosecutors. Serving in the Taipei District Court at the political and economic center has given me more opportunities to handle high-profile social cases. Through this professional practice, I have deeply felt that the actions of some prosecutors are by no means what they call "the most objective office in the world"; rather, they relentlessly hound criminal defendants and even engage in abusive prosecution. Because to "get ahead" in the current prosecutorial system, handling major cases brings the spotlight and secures promotion. Meanwhile, prosecutors who handle cases conscientiously, adhere strictly to procedural justice, and submit to the law often fail to win the favor of their superiors.

In view of this, in recent years I have concentrated my spare time on studying the problems of the prosecutorial system. In addition to publishing my research in newspapers and magazines and participating in numerous seminars, I have closely cooperated with civil organizations to jointly deliberate and draft the Draft Organic Act of the Prosecutors Offices. Our shared goal is to build a prosecutorial system that submits to constitutional democracy and human rights protection while implementing matched powers and responsibilities. Of course, such courageous "expression" on my part is naturally unpalatable to some prosecutors. Moreover, people generally prefer to remain complacent and resist change. Therefore, when President Tsai Ing-wen announced the convening of the National Conference on Judicial Reform, many judges and prosecutors felt anxious—especially prosecutors who had frequently found themselves in political storms and deep government interference.

Working Together to Establish a Prosecutorial System with Matched Powers and Responsibilities

Take Prosecutor Chen Rui-jen (陳瑞仁), the most representative figure in the prosecutorial system, for example. As early as August 2016, he published an op-ed in the media calling on President Tsai to halt the convening of the National Conference on Judicial Reform to avoid "populist governance." Finding it impossible to stop, it was only natural for the prosecutorial system represented by Chen to attempt to "hijack individuals" and "hijack issues" within the judicial reform conference. This was the main reason he strongly blocked myself and other scholars and experts aspiring to judicial reform from becoming members of the Third Division, because the task of the Third Division—"establishing an efficient judiciary with matched powers and responsibilities"—primarily targets and reviews the prosecutorial system. Consequently, the Third Division became a "minefield division" in the eyes of journalists, with controversial media news abounding and the "warring" sides frequently seizing the narrative via the media.

In fact, enhancing the transparency and efficiency of the prosecutorial system, reviewing the professional division of labor among prosecutors, police, and investigators, and implementing the separation of the bench and prosecution along with matched powers and responsibilities are the fervent expectations of all citizens. Furthermore, improving unfair internal promotions and uneven workloads within the prosecutorial system, and preventing the Minister of Justice or the Prosecutor-General from improperly interfering in the exercise of prosecutorial powers due to factors such as lobbying or political influence, are surely the shared aspirations of the vast majority of prosecutors. Therefore, members of the Third Division should cast aside prejudices and work together to achieve the aforementioned goals. Accordingly, upholding the concepts of "rationality," "independence," and "tolerance," I propose the following demands regarding the reform of the prosecutorial system:

The institutional names of prosecutors offices at all levels (such as the Taiwan Taipei District "Court" Prosecutors Office) shall no longer bear the name of a court.

Explanation
Since the separation of the judiciary and prosecution in 1980, prosecutors offices at all levels have been subordinate to the Ministry of Justice, maintaining only business interactions with the Judicial Yuan or various courts without any subordinating relationship. Furthermore, the duties and roles of judges and prosecutors are distinct. To prevent public confusion and root down the rule of law culture, the names of prosecutors offices at all levels should no longer bear the name of a court.

Prosecutors are not judges. The institutional designs and powers assigned to prosecutors by the Code of Criminal Procedure since the late Qing and early Republican periods—which positioned them as "pre-trial judges"—should be re-examined and resolved through legal amendments. Simultaneously, non-prosecution dispositions rendered by prosecutors should not be endowed with substantive finality.

Explanation
When our country introduced the prosecutorial system from the late Qing and early Republican era, prosecutors were assigned the role of "pre-trial judges." Although reviewed and amended over the past century, the design of compulsory measures still neglects the value of the "principle of judicial reservation" (prior review by judges, requiring a warrant), excessively expanding the decision-making authority of investigative agencies. Future legislative policy should adopt the principle of judicial reservation for major compulsory measures (such as bodily inspections). For secondary or urgent compulsory measures, while granting investigative agencies the authority to initiate them directly may be considered, post-review systems should be instituted to strictly limit the application of urgent measures.

To clarify prosecutorial powers, ensure the independence of prosecutorial duties, and implement the separation of the bench and prosecution along with matched powers and responsibilities, an Organic Act of the Prosecutors Offices should be enacted, and a tailored Prosecutors Act should be established for prosecutors, rather than remaining subordinated to the Court Organization Act and the Judges Act.

Explanation
Prosecutors are proactive and active crime-prosecuting agents who must observe the principles of non-disclosure of investigations and prosecutorial unity. Conversely, judges are passive and reactive, and their decisions possess final binding force, making them subject to the principles of public trials and judicial independence. Since the nature and powers of prosecutors and judges differ, and the Ministry of Justice and the Judicial Yuan are not subordinate to one another, the organization, personnel, and powers of prosecutorial organs, as well as the status guarantees of prosecutors, should be detached from the Court Organization Act and the Judges Act to be legislated independently. Enacting the Organic Act of the Prosecutors Offices and the Prosecutors Act separately will clarify prosecutorial powers, ensure the independence of prosecutorial functions, and implement the separation of the bench and prosecution alongside matched powers and responsibilities. Moreover, having both acts fall under the jurisdiction of the Ministry of Justice avoids the awkward dilemma under the current system where the Ministry wishes to review and amend related prosecutorial organization and personnel laws yet cannot propose amendments on its own, but must instead commission the Judicial Yuan to do so.

While prosecutors still possess the attribute of so-called "judicial officers," they should no longer receive case-handling bonuses, be nominated for the Ten Outstanding Young Persons (or Women), nor be extensively stationed as heads of administrative agencies such as 政風處 (Departments of Government Ethics) or the Administrative Enforcement Agency.

Explanation
The characteristics of judicial power are neutrality, passivity, and independence, carrying out work based on law and conscientious conviction without being influenced by public opinion. Regardless of whether prosecutors possess the attribute of "judicial officers," the current practice of prosecutors receiving case-handling bonuses, being nominated for the Ten Outstanding Young Persons (or Women), or model civil servants creates the false impression that prosecutors pander to public opinion and conform to policy rather than submit to the law. Furthermore, assigning a large number of prosecutors to head administrative agencies such as government ethics departments and administrative enforcement agencies not only hollows out investigative manpower but also seizes high-ranking positions in government ethics and administrative enforcement systems, clearly manifesting the executive power attribute of prosecutors. Therefore, while prosecutors still retain the attribute of "judicial officers," they should no longer receive case-handling bonuses, be nominated for the Ten Outstanding Young Persons (or Women), nor be extensively stationed as heads of administrative agencies such as government ethics departments or the administrative enforcement agency.

To ensure the independence of prosecutors in the external exercise of their duties, future constitutional amendments should consider incorporating prosecutorial power into the Constitution and positioning prosecutors as special administrative officials.

Explanation
To restrain prosecutorial power and unify prosecution standards, under the principle of prosecutorial unity, prosecutors must internally obey the commands of the Prosecutor-General, yet they possess independence when exercising their duties externally. Prosecutors engage in legal work such as criminal prosecution and act as representatives of public justice; their status should be guaranteed. Although constitutional provisions protecting judges (status guarantees and independence in exercising duties) do not directly extend their scope of validity to prosecutors, pursuant to J.Y. Interpretation No. 13, their status guarantees are identical to those of judges. To ensure the independence of prosecutors in the external exercise of their duties, future constitutional amendments should consider incorporating prosecutorial power into the Constitution and positioning them as special administrative officials.

Chief prosecutors at local prosecutors offices should be elected by the prosecutors of that office and subsequently selected (circle-voted) by the chief prosecutor (prosecutors offices with fewer prosecutors may be subject to separate regulations), and submitted to the Ministry of Justice's Prosecutor Review Committee for consent and appointment. The Minister of Justice shall not enjoy selection (circle-voting) power. Simultaneously, a system of rotation and experience-building for prosecutors at all levels of prosecutors offices should be established, reducing the staffing of the Taiwan High Prosecutors Office; chief prosecutors of anti-corruption (Special Investigation) divisions in local prosecutors offices shall be preferentially assigned from those returning from the High Prosecutors Office.

Explanation
To establish a prosecutorial organization with matched powers and responsibilities, one must concurrently balance the mutual checks between prosecutorial independence and democratic accountability (internal and external aspects of the prosecutorial system), as well as the mutual checks between prosecutorial unity and prosecutorial autonomy (upper and lower tiers of prosecutorial organs). Separation of powers and checks and balances must be utilized to prevent arbitrariness from superiors or arrogant abuse of power by subordinates. Under the current career ladder where chief prosecutors and prosecutors at the High Prosecutors Office and above enjoy lofty status, minimal workloads, and low work pressure, coupled with the Minister of Justice holding circle-voting power, tendencies to cater to the superior's will and distort legal rationality in handling cases are generated. To prevent unfair internal promotions and uneven workloads in the prosecutorial system, chief prosecutors should be elected by prosecutors who understand each other's professional performance best. Meanwhile, to achieve matched powers and responsibilities, the chief prosecutor should possess a degree of personnel decision-making authority. Therefore, chief prosecutors of local prosecutors offices should be elected by the prosecutors of that office, then circle-voted by the chief prosecutor, and submitted to the Ministry of Justice's Prosecutor Review Committee for consent and appointment, and the Minister of Justice shall not enjoy selection (circle-voting) power. Concurrently, once the re-investigation system is abolished or a prosecution review board is established, the staffing of the High Prosecutors Office should be reduced, and a rotation and experience-building system for prosecutors across all levels should be established. Regarding the selection of chief prosecutors for anti-corruption (special investigation) divisions in local prosecutors offices, priority should be given to appointing returnees from the High Prosecutors Office to pass on experience and serve as a pool of reserve candidates for future prosecutorial heads.

Newly appointed chief prosecutors of offices should be selected from a pool of candidates three times the number of vacancies voted on by national prosecutors, narrowed down to twice the number of vacancies by the Prosecutor-General, and finally submitted to the Minister of Justice for selection (circle-voting), followed by submission to the Ministry of Justice's Prosecutor Review Committee for consent and appointment. The Prosecutor-General shall be proposed by the Ministry of Justice's Prosecutor Review Committee from a list of three to five candidates, selected (circle-voted) by the Minister of Justice, and appointed through the Executive Yuan with the consent of the Legislative Yuan.

Explanation
To ensure the smooth implementation of criminal policy, the Minister of Justice should be granted the authority to appoint and dismiss chief prosecutors of district and high prosecutors offices. Simultaneously, the Minister should also be granted a degree of participatory decision-making power in the appointment of the Prosecutor-General, in line with responsible politics and democratic accountability. As the apex of prosecutorial unity within their jurisdiction, chief prosecutors possess the power to command and supervise subordinate prosecutors. Political forces can manipulate, influence, and interfere with the fair and neutral exercise of prosecutorial powers by controlling the personnel authority of chief prosecutors through the Minister of Justice. Therefore, a balancing mechanism should be established against the personnel authority of the Minister of Justice, granting the highest head who commands case operations in the prosecutorial system—the Prosecutor-General—a participatory decision-making voice. Additionally, because prosecutorial affairs are highly professional and autonomous, to foster the professional autonomy of prosecutors at all levels, all prosecutors should also be provided with a mechanism to voice opinions regarding the appointment of the Prosecutor-General and chief prosecutors. Hence, newly appointed chief prosecutors should be chosen from candidates three times the number of vacancies elected by national prosecutors, shortlisted to twice the number of vacancies by the Prosecutor-General, submitted to the Minister of Justice for circle-voting, and then sent to the Ministry of Justice's Prosecutor Review Committee for consent and appointment. The Prosecutor-General should be nominated by the Prosecutor Review Committee from three to five candidates for the Minister of Justice to circle-vote, and subsequently appointed through the Executive Yuan with the consent of the Legislative Yuan.

To make the prosecutorial personnel system democratic, autonomous, and transparent, in compliance with gender equality, and balancing executive administrative powers and responsibilities with external participation of diverse values, while strengthening the democratic accountability of prosecutorial power, members of the Ministry of Justice's Prosecutor Review Committee must include at least one-third female members and diverse voting representatives (external members).

Explanation
The exercise of prosecutorial power profoundly affects people's rights and interests and is vital to the realization of social justice. Although its professionalism warrants special consideration for prosecutorial autonomy, democratic accountability must still be implemented. Currently, all members of the Ministry of Justice's Prosecutor Review Committee are incumbent prosecutors, which can foster a personnel decision-making culture characterized by insular prosecutorial thinking, geographical interest considerations, seniority-based progression, and compromising for superficial harmony. To render the prosecutorial personnel system democratic, autonomous, transparent, and pluralistic, and to strengthen accountability functions to prevent abusive prosecution—thereby matching the prosecutor's duty as a representative of public justice—the Prosecutor Review Committee should include external members with voting rights. Simultaneously, to comply with the principle of gender equality, at least one-third of the committee members must be female.

To ensure neutrality and impartiality in the exercise of prosecutorial power and prevent the abuse of the principle of prosecutorial unity, when a chief prosecutor exercises the power of individual case command and supervision, the power of retrieval (taking over a case), or the power of transfer, it shall be done in writing. If a chief prosecutor fails to issue a written instruction in accordance with regulations, prosecutors may petition the Prosecutor Evaluation Committee to conduct an individual case evaluation against the violator.

Explanation
To prevent the Prosecutor-General or chief prosecutors from improperly interfering in the exercise of prosecutorial powers due to lobbying or political influence, causing prosecutorial power to lose its due neutrality and impartiality, the Ministry of Justice as early as 1998 introduced the "Sunshine Bill for Prosecutorial Unity" and enacted related regulations to govern the content and operational methods of chief prosecutors' command and supervision over prosecutorial affairs (including making case assignments objective and institutionalized, and allowing chief prosecutors to inspect case files or listen to reports from handling prosecutors when necessary, aiming to rationalize and transparentize command operations). However, over the years, this has consistently lacked effectiveness. The reason is that although the current Judges Act contains provisions on the command and supervision of the prosecutorial system, these rules lack corresponding accountability and check-and-balance clauses. This easily tempts chief prosecutors to deliberately evade the principle of written command and supervision, leaving frontline prosecutors at a loss. Therefore, laws should be amended to explicitly mandate that when the Prosecutor-General or chief prosecutors exercise individual case command and supervision, retrieval powers, or transfer powers, they must do so in writing. If they fail to do in writing, the matter shall be submitted to the Prosecutor Evaluation Committee for evaluation, serving as a safeguard for frontline prosecutors to demand written responses from prosecutorial heads while preventing both sides from shirking responsibility afterwards.

The distribution of prosecutors' cases shall be decided by a meeting of prosecutors to promote internal decision-making democracy and transparency within the prosecutorial system. To ensure that personnel are suited to their roles and to maintain accountability mechanisms in group-based prosecutorial work, the selection of group leaders (chief prosecutors) and the allocation of group members shall all be discussed and decided upon by the prosecutors meeting.

Explanation
Personnel control and case control are frequently two major instruments utilized by political sectors to interfere with the exercise of prosecutorial powers under the guise of prosecutorial unity. However, the proper application of the principle of prosecutorial unity can indeed restrain the abuse of prosecutorial power and unify the application of laws and prosecution standards. Because prosecutorial power possesses a high degree of professionalism, individual prosecutors offices should enjoy a certain degree of autonomous decision-making authority over prosecutorial administration and case matters. In other words, prosecutorial unity and prosecutorial autonomy within prosecutorial organs must check and balance each other, using a system of separation of powers to prevent arbitrariness from superiors or arrogant abuses of power by subordinates. Therefore, the distribution of prosecutors' cases should be decided by prosecutors meetings to promote internal democratic and transparent decision-making within the prosecutorial system. Concurrently, for group-based work, to ensure that personnel are suited to their positions and to ensure accountability, the selection of group leaders (chief prosecutors) and the allocation of members should all be discussed and decided by the prosecutors meeting. Furthermore, under the mechanism where the Prosecutor-General or chief prosecutors can request reconsideration of decisions made by the prosecutors meeting, and given that they still retain individual case command and supervision powers, retrieval powers, and transfer powers, the principle of prosecutorial unity will not be impaired.

Be Candid, Forge Consensus, and Make Decisions

Today, those fortunate enough to be recommended by the preparatory committee or elected by bench, bar, and prosecution personnel to serve as commissioners of the National Conference on Judicial Reform are overwhelmingly people of high standing and established reputation. Logically, none of them should deliberately seek to upend others or disparage a specific legal community. If the prosecutorial system can open its heart and listen to different opinions, it will discover that we share many common goals, as we all desire an efficient, responsibility-matched crime investigation system to ensure we live in an orderly society with sound public security. May we take heed of the lessons of the 1999 Judicial Reform Conference, cast aside insular institutional positions, be candid with one another, forge consensus, and make decisions—thereby allowing the conclusions reached by this conference, which lacks a statutory basis, to win the support of all sectors of society and urge the legislative branch to complete legislation, ultimately establishing a judiciary that submits to constitutional democracy and human rights protection.

※ Originally published in Up Media on April 10, 2017