Prosecutorial Reform... Diverse Participation and Accountability to the People

Prosecutor-General Huang Shih-ming was indicted for breach of official secrets after investigating a case involving the legislative speaker's alleged political intervention in judicial affairs, prompting lawmakers from both the pan-Blue and pan-Green camps to demand his resignation. Over the past decade and more, all three Prosecutors-General selected following Taiwan's transfers of political power have faced the predicament of early departure due to investigative controversies. Logically, as the head of the prosecutorial system, a Prosecutor-General should possess superior moral character, knowledge, and investigative experience. What on earth is wrong with the prosecutorial system?

Based on the needs of the separation of powers and checks and balances, our country inherited Western legal systems and introduced the prosecutorial system. Whether in the UK under the Anglo-American legal system or France under the civil law system, prosecutors both originated as "agents upholding the interests of the King." Consequently, prosecutors have been inextricably linked to politics from the very beginning, and have been criticized as "the ruling authorities' tool of choice." Later, after the UK and France became constitutional democracies, prosecutors transformed into "representatives of the public interest," prosecuting crimes and safeguarding civil rights. Because prosecutors can initiate criminal investigations on their own and enjoy discretionary power over prosecution, how to control the prosecutorial system so that it does not become a runaway wild horse has become a common challenge faced by all countries.

Because the United States adopts an adversarial trial system, prosecutors are state litigation agents carrying a strong flavor of attorneys, and are positioned simply as administrative officials. Federal prosecutors are appointed with congressional approval, while most state or county chief prosecutors are elected by voters within their jurisdictions. Their decisions on whether to prosecute or what sentence to seek must take public perception into account; otherwise, they will fail to win reelection. It is thus evident that American prosecutors do not emphasize the so-called judicial attribute; their appointment and retention have from the beginning required consideration of public opinion.

In the French legal system inherited by our country, prosecutors are positioned as judicial organs situated between the executive and judicial powers. Under the old system, prosecutorial personnel were appointed upon the recommendation of the Minister of Justice, and the career advancement of prosecutors was susceptible to political influence. Coupled with the Minister's power to issue instructions in specific cases, this easily created opportunities for political forces to intervene in case investigations. In view of this, France established the High Council of the Judiciary, where the appointment of prosecutors must follow the advice of the Council's Committee on Prosecutorial Affairs. This committee is composed of the President, the Minister of Justice, prosecutors, judges, the President of the Council of State, and six individuals who do not belong to legislative, executive, or judicial organs. To strengthen the independence of judicial operations, the latest constitutional amendments in 2008 further excluded the President and the Minister.

The legal systems of the US and France demonstrate that the two countries have completely different positions and personnel appointments for prosecutors, yet both possess corresponding accountability mechanisms. In contrast, during the early period of authoritarian rule by the Kuomintang in our country, the party-state apparatus controlled prosecutorial personnel. Later, having undergone the lifting of martial law and two transfers of political power, when political forces could no longer intervene, what our country faced instead was a prosecutorial dictatorship and the problem of runaway zeal for prosecution. In recent times, regardless of pan-Blue or pan-Green affiliations, and regardless of whether ordinary citizens or elites are involved, how many people have been detained and prosecuted, only to be ultimately acquitted! Have we ever heard any introspection from the prosecutorial system? Has the career advancement of these prosecutors who abuse their prosecution powers ever been affected? Very rarely! Because the members of the Prosecutorial Personnel Review Committee, which is responsible for prosecutorial promotions, are entirely prosecutors, under the mainstream mindset that investigating cases means investigating major cases and means securing indictments, how could prosecutors think there is anything major about this!

Indicting the Prosecutor-General is the first step in reforming the investigative culture of prosecutors, but compared to the French legal system, we must also establish a prosecutorial personnel system featuring diverse participation and accountability to the people.