Huang Shih-ming Must Relinquish the Prosecutor-General's Command Authority

Minister of Justice Lo Ying-shee invoked the Judges Act, which applies mutatis mutandis to prosecutors, refusing to immediately decide whether to suspend Prosecutor-General Huang Shih-ming on the grounds that the facts related to Huang's indictment did not reach the threshold of "involving serious criminal circumstances." However, aside from the Judges Act which governs status protection, the issue of an indicted Prosecutor-General continuing to exercise official powers has given rise to a dilemma regarding whether and how the Prosecutor-General can recuse themselves pursuant to the Code of Criminal Procedure. At a time when the credibility of state public authority has been severely undermined, this issue should not be taken lightly.

Holding Great Power Allows Control Over Cases

Under the principle of prosecutorial unity, the Prosecutor-General not only has the authority to direct prosecutors at all levels of high courts and branch courts, but if willing, can also personally handle matters of all prosecutors under their command, and transfer such matters to other prosecutors under their command. However, if the (stigmatized) principle of administration according to law is strictly implemented, Huang Shih-ming could indeed brave universal condemnation by assigning the investigation, indictment, and even future public prosecution trial attendance work of his illegal wiretapping case to prosecutors he "trusts," or even handle it personally, creating the absurd situation of being both plaintiff and defendant. Even if the original handling prosecutor whose case was taken away objects, they can only submit a written statement and ultimately must still obey.

To avoid this situation from occurring, outsiders would immediately think of resorting to the recusal mechanism provided by the Code of Criminal Procedure. However, when this mechanism is applied to Huang Shih-ming's case, it poses at least three difficulties. The first is who should file it, the second is the grounds for applying for recusal, and the third is who has the authority to decide whether Huang should recuse himself.

First, according to the Code of Criminal Procedure, Huang Shih-ming is the defendant himself, rather than the individual case's handling prosecutor or trial judge; thus, he cannot recuse himself on his own initiative, nor can he easily become the target of a recusal application. If a general recusal application targets a judge, it can be filed by the prosecutor or the defendant; if it targets a prosecutor, it can only be filed by the private prosecutor (not applicable in this case) or the defendant. Even if the term "prosecutor" in the statute is given the broadest interpretation, if the defendant in this case, Huang Shih-ming, does not apply for himself—the Prosecutor-General—to recuse himself, leaving aside how absurd such a situation is, others are truly helpless.

As for the grounds for applying for recusal, it should be that the prosecutor's performance of duties creates a risk of bias. However, can this reason apply to Huang's case? Of course, if any suspect or defendant has a dispute with the superior prosecutor of the prosecutor handling their case, theoretically there exists the possibility of bias on the part of the handling prosecutor. Yet, in practice, there is no precedent for such a recusal claim being supported.

The Dual Status Should Be Resolved

As for the third question, who has the authority to decide that Huang Shih-ming must recuse himself? Even if an application could be filed against the Prosecutor-General, this position has no higher-ranking prosecutor above it to decide whether recusal is required.

There are certainly reasonable grounds for the Minister of Justice to attach importance to the status protection of the Prosecutor-General. However, since the Prosecutor-General simultaneously serves as both a defendant and a superior who can interfere with handling prosecutors at any time, the Minister of Justice cannot shirk responsibility for the dilemma of criminal procedure recusal arising from the blending and conflict of these two opposing roles in a single individual. Judge Lin Meng-huang recently published an op-ed noting: Huang Shih-ming's subordinate, Hung Tai-wen, even recused himself from attending the evaluation of Huang; how can the Minister of Justice act contrary to the spirit of the rule of law and sit idly by while the fairness of criminal proceedings continues to be tied to the sole will of Huang Shih-ming? Even if Huang Shih-ming does not resign or face suspension, he must at least immediately take a leave of absence and cease exercising all command authority.