Unveiling Prosecutors' "Judicial Officer" Facade

Conventionally in Taiwan, both prosecutors and judges are broadly referred to as "judicial officers," and prosecutors have repeatedly claimed to retain the attributes of judicial officers, thereby shrouding themselves in a "judicial officer" facade. However, this facade has instead blurred and confused the role positioning of prosecutors. The confusion over the role of prosecutors blurs the boundary between executive power and judicial power, which is a matter of great significance. This concerns the sound development of the rule of law in our country and must be approached with utmost seriousness.

What is the difference between a judge and a prosecutor? Why does the law provide for prosecutors' offices to be "collocated" with courts (bearing the court's name), yet prosecutors' offices do not belong to the courts? Is the "judicial independence" pursued by prosecutors different from the "judicial independence" (trial independence) guaranteed to judges by the Constitution?

The Prosecutors' Office is an Agency Independent of the Courts

The confusion between the roles of judges and prosecutors stems from the ambiguous inheritance of these two concepts from Western judicial systems in the late Ch'ing dynasty and early Republican period. The court establishment laws of the late Ch'ing and early Republican periods imitated Japan's Law of the Organization of Courts, incorporating trial yamen (trial halls at various levels)—meaning present-day courts—and prosecutors' halls—meaning present-day prosecutors' offices—as parallel setups. However, prosecutors' offices were once abolished and replaced by prosecutors being stationed in courts, only to be reinstated later because such an arrangement led people to mistakenly believe prosecutors were subordinate to courts. Consequently, the Court Organization Act stipulates that prosecutors' offices are "collocated" with courts and branch courts at various levels. Nevertheless, legal provisions stating that prosecutors' offices are "collocated" with courts still foster the perception that prosecutors' offices are organs belonging to the courts, and prosecutors are court personnel. For instance, not long ago, an instructor attending a class at the Judges Academy asked if there were any judges from the Taipei District Court present, remarking that he knew a colleague of a judge who was a prosecutor at the Taipei District Prosecutors' Office, and countless similar examples exist. In reality, prosecutors' offices are independent agencies established correspondingly to courts and have no structural affiliation with the courts. Because prosecutors' offices bear the names of courts, ordinary citizens often misunderstand the relationship between the two when interacting with the courts, and many legal professionals are indifferent to this misunderstanding, figuring they are all legal practitioners anyway.

Although the term "judicial officer" is a blanket term for both prosecutors and judges, some scholars use "judicial officer" synonymously with "judge." Therefore, the term "judicial officer" is one of the primary reasons for the role confusion between prosecutors and judges, and whether this blanket term should continue to be used warrants review. Even if its continued use is desired, there is a clear need for clarification.

Prosecutors are Judicial Administrative Officers

To explain the difference between judges and prosecutors through the lens of judicial officers, one might say: there are two kinds of judicial officers—one is the judicial administrative officer, namely the prosecutor; the other is the judicial adjudicator, namely the judge. The designation of prosecutors from the early Republican court establishment laws has continued to this day, but judges were formerly called "trial officials" (ts'u-shih) or "adjudicators." The term "judge" (fa-kuan) was only officially rectified upon the enactment of the Personnel Act for Judicial Personnel in the 78th year of the Republic (1989). The nature of a prosecutor's work has long been positioned as "judicial administrative": when the Nationalist Government decided in the 16th year of the Republic (1927) to abolish prosecutors' agencies at all levels and collocate them within courts, it considered prosecutorial work to be primarily investigation and enforcement, with their duties being merely "judicial administration" within the courts. Furthermore, the legislative principles for the Court Organization Act proposed by the Kuomintang Central Political Council in the 21st year of the Republic (1932) also indicated that prosecutors truly possess "the nature of judicial administrative officers." During the legislative process of the Judges Act, in order to fight for the retention of so-called "judicial officer" attributes, some prosecutors opposed the enactment of a Prosecutors Act or the Judges Act (applied mutatis mutandis) that might affect those attributes, actively advocating instead for the enactment of a "Judicial Officers Act." Their motivation, frankly speaking, was to fight for the same status (including lifetime tenure and remuneration) guarantees as judges (rather than applying the Judges Act mutatis mutandis). The backing for a judge's "trial independence" is status security; prosecutors believed they also needed status security to "uphold judicial independence" in order to effectively combat crime. In fact, the issue of prosecutors' status security was already interpreted as early as the 42nd year of the Republic (1953) in Judicial Yuan Interpretation No. 13, which essentially mirrors that of judges, leaving no need for concern.

Based on the above, even if prosecutors are deemed judicial officers, they are judicial administrative officers, not judicial adjudicators. Therefore, the nature of a prosecutor is naturally that of an "administrative officer," albeit different from ordinary administrative officers. Ordinary administrative officers possess no independence either internally or externally, but prosecutors, under the principle of the unity of the prosecution service (monopoly of prosecution), are legally obligated to obey the commands of the Prosecutor-General (or chief prosecutor), lacking the internal independence encompassed by a judge's trial independence (where a court president cannot influence a judge's adjudication); they possess independence only when exercising their powers externally. The "judicial independence" spoken of by prosecutors refers to external prosecutorial independence, which differs from a judge's "trial (judicial) independence," which encompasses both external and internal independence.

Abandoning the Mindset of Executive Officials Exercising Judicial Functions

If the public lacks a correct understanding of the roles of judges and prosecutors, they may mistakenly believe that prosecutors can exercise judicial powers just like judges (for instance, in the early years when prosecutors possessed detention powers and wiretap authorization powers like judges), or even believe that judges should cooperate with prosecutors as much as possible to fulfill the function of combating crime (such as hoping judges will grant as many detention or wiretap applications filed by prosecutors as possible). However, since prosecutors are judicial administrative officers, the power to prosecute crimes they exercise belongs to executive power (proactive and initiative-driven); judges are judicial adjudicators who exercise judicial power (passive and reactive). If these two powers are exercised by the exact same person, how is that fundamentally different from the long-abandoned pre-late-Ch'ing Chinese system of "executive officials concurrently exercising judicial functions"? If system designers fail to deliberate cautiously on this, downplay the administrative oversight over prosecutorial power, and neglect the requirement for judges to act as guardians of human rights, it is highly likely that many innocent people will suffer unjustified harm due to prosecutors filing indictments or wiretapping without thorough investigation, or judges failing to fulfill their role as guardians of human rights.

Prosecutors and Prosecutors' Offices Should Be Governed by Dedicated Legislation

In the 22nd year of Showa (1947), Japan abolished the Law of the Organization of Courts—which legislated the merger of courts and prosecutors' offices—replacing it with the Court Act and the Public Prosecutors' Office Act. This should be viewed as a decision made out of an understanding of their differing attributes and functions. Meanwhile, across the strait, not only have a Judges Act and a Prosecutors Act been enacted separately, but an Organic Act of the People's Courts and an Organic Act of the People's Procuratorates have also been separately instituted. The legislation in Japan and across the strait should offer some inspiration to our policymakers!

Judging from the event on August 31 of this year where the Prosecutor-General reported intelligence obtained from wiretaps regarding political lobbying to the President, the administrative officer role and mindset of prosecutors have been laid completely bare. Since prosecutors are judicial administrative officers rather than judicial adjudicators (judges), they should be distinguished from judges who possess different attributes. Enacting a "Prosecutors' Office Organic Act" that is independent of and not collocated with the courts, alongside a "Prosecutors Act" fitting their own attributes, will be conducive to the sound development of the prosecutorial system. It is understood that during the promotion of the Judges Act, some legislators also proposed a Prosecutors Act bill, but constrained by the "judicial officer" complex, it ultimately failed to materialize—which is quite a pity. Two years into the implementation of the Judges Act, transplanting the status security provisions cherished by prosecutors into a Prosecutors Act bill should face no obstacles. This ideal relies on dedicated individuals to promote and realize it, ultimately fulfilling the constitutional intent of the "separation of the judiciary and the prosecution" revealed decades ago by Judicial Yuan Interpretation No. 86, and elevating our country's level of the rule of law to new heights.

The late criminal law authority, Professor Lin Shan-t'ien (Lin Shan-tian), stated at a public hearing in the Legislative Yuan in the 88th year of the Republic (1999) that prosecutors participate throughout the entire criminal procedure—from investigation, accusation, participation in court proceedings, formation of judgment, all the way from indictment to the final enforcement of criminal law—making them the most crucial members in embodying legal justice, and they must be given a dedicated professional law. His remarks, viewed today, still appear remarkably wise.