Prosecutor System Reform

The Prosecutor General is currently nominated by the President and confirmed by the Legislative Yuan, whereas the Minister of Justice is simply appointed by the Premier without legislative confirmation. The Prosecutor General thus has a considerably stronger democratic mandate. Institutionally, however, the Prosecutor General is subordinate to the Minister of Justice, who has administrative supervisory authority over prosecutors offices at every level and may set criminal policy guidelines that all prosecutors nationwide must follow. If the Minister of Justice and the Prosecutor General disagree on how to implement criminal policy, who should bear ultimate responsibility—the Minister, who lacks a democratic mandate, or the Prosecutor General, who has one but serves a fixed term and is no longer answerable to the legislature?

In the past, a superior often needed only to say a word for frontline prosecutors to fall in line, and if something went wrong, the prosecutor handling the case took the blame. After years of reform efforts, the written-instruction requirement was finally written into the 2006 amendment to the Court Organization Act, and the Judges Act passed in 2011 expressly provided that "orders shall be given in writing with reasons." Yet despite these explicit legal provisions, superiors continue to give oral instructions on cases in practice, fueling persistent public suspicion of political interference in investigations. If the written-instruction requirement is not enforced and responsibility cannot be clearly assigned, how can prosecutors be expected to resist political pressure and handle cases independently?

District prosecutors offices divide their prosecutors by function into three groups: investigation, trial, and enforcement. Investigating prosecutors make up roughly two-thirds of each office's prosecutors. Because prosecutors at the high prosecutors offices and above generally do not conduct investigations, almost all criminal investigations nationwide are handled by just over 700 investigating prosecutors at the district level. With nearly two million investigation cases a year, each investigating prosecutor's workload has long far exceeded what is manageable. By contrast, prosecutors at the high prosecutors offices and above need only appear in court to argue cases, so their workload is much lighter—so much so that these offices have been mocked as "retirement homes."

Moreover, before a judgment becomes final, a single case passes through the hands of several different prosecutors: the investigating prosecutor, and then the trial prosecutors at the first, second, and third instances. But can trial prosecutors know the facts and details of a case as well as the investigating prosecutor does? And when a defendant is acquitted, who should be held responsible? The investigating prosecutor who gathered the evidence? The trial prosecutor at first instance? At second instance? Or at the final instance?

Because workloads are so unevenly distributed, frontline investigating prosecutors are eager to move up to the high prosecutors offices, and prosecutors who see themselves as "judicial officers" have developed the kind of careerist culture common in the civil service. On the prosecutorial career ladder, the position of head prosecutor is a necessary step toward becoming a prosecutor at a high prosecutors office. At present, head prosecutors are appointed by the Minister of Justice from a shortlist drawn up by the Prosecutors Personnel Review Committee containing 1.5 times as many candidates as there are posts (in practice, often more). Getting onto the shortlist, let alone being chosen by the Minister, requires a concrete record of achievement—namely, experience handling "major cases." For a district prosecutor, being assigned a high-profile case is therefore a decisive boost to promotion prospects. Yet which cases a prosecutor may or may not handle is sometimes in the hands of the chief prosecutor, who has the power to assign cases and can give high-profile ones to the prosecutors they trust most. Winning the chief prosecutor's trust thus becomes a prosecutor's first priority for advancement. And because the Minister of Justice has the final say in selection, avoiding a "bad" impression in the Minister's eyes is also crucial. When rumors of political interference in investigations are rife, they may sometimes simply reflect prosecutors second-guessing what their superiors want. As long as this careerist culture persists, how can prosecutors be expected to handle cases independently and fearlessly, guided only by their conviction in the law?

The appointment, removal, transfer, suspension, dismissal, promotion, performance review, rewards, and discipline of prosecutors are all decided by the Prosecutors Personnel Review Committee. The Committee currently has 17 members: four representatives appointed by the Minister of Justice, the Prosecutor General and three representatives appointed by the Prosecutor General, and nine representatives elected by all prosecutors. It is chaired by a deputy minister with the status of a judge or prosecutor, appointed by the Minister of Justice. In short, every current member of the Committee is a prosecutor. Why is this a problem? Setting aside the influence the Minister of Justice and the Prosecutor General wield within the Committee, can a personnel committee made up entirely of prosecutors really judge whether prosecutors are fit for office without being swayed by professional self-interest, and reach decisions that convince the public and meet society's expectations?

In line with the government's policy of streamlining and flattening its organization, the prosecution service should be restructured into two tiers: a national prosecutors office and regional prosecutors offices. Abolishing the high prosecutors offices, which serve little purpose at present, would free up underused staff, address the shortage of frontline investigating prosecutors, and even out the distribution of work, allowing the prosecution service to perform its proper functions.

So that responsibility for every case can be clearly assigned, the current separation of investigation and trial work should be replaced by an integrated system in which the same prosecutor handles a case from investigation and indictment through to final judgment. This would also avoid the waste of trial prosecutors at each instance having to review the case file all over again.

The head prosecutor position was originally meant to lead teams of prosecutors in handling cases, but in practice it has become a stepping stone to promotion, distorting its original purpose. To keep prosecutors from catering to their superiors' preferences for the sake of promotion, the head prosecutor position should be abolished and replaced by a senior prosecutor system. Any prosecutor who meets objective criteria could become a senior prosecutor, and team leaders would be elected by the prosecutors of each office from among the senior prosecutors. This would both discourage prosecutors from currying favor with superiors and deepen internal democracy within the prosecution service.

The written-instruction requirement has gone unenforced since it was codified in 2006 because frontline prosecutors have no means of standing up to their superiors. To make the requirement effective, frontline prosecutors should be given the power to refer their chief prosecutor for evaluation: if a chief prosecutor directs or reassigns a case but refuses to put instructions in writing, the prosecutor handling the case could refer the chief prosecutor for evaluation on that basis, bringing transparency to supervisory oversight.

The Judges Act of 2011 provided for prosecutors' meetings for the first time, but in practice most prosecutors offices have not held them. The law should therefore require prosecutors' meetings to be held every month, so that internal democracy within the prosecution service becomes a reality.

Although the prosecution service is an agency under the Ministry of Justice, the Prosecutor General is nominated by the President and confirmed by the Legislative Yuan, giving the Prosecutor General greater democratic legitimacy than the Minister of Justice. This makes it difficult for the Minister to hold their own against the Prosecutor General when implementing criminal policy. To normalize the relationship between the two, the Minister of Justice should have the power to propose candidates for Prosecutor General; after approval by the Executive Yuan, the Premier would nominate the candidate for confirmation by the Legislative Yuan.

As the highest administrative supervisory authority over prosecutors offices at all levels, the Ministry of Justice may not direct individual cases, but the Minister must bear political responsibility for the success or failure of prosecutorial policy as a whole. So that criminal policy can be implemented smoothly, the Minister of Justice should be given greater authority over the appointment of the heads of prosecutors offices, ensuring political accountability.

The Minister of Justice is a political appointee who bears political responsibility for implementing policy. The Prosecutor General, as head of all prosecutors nationwide and responsible for overseeing prosecutorial practice, may consult chief prosecutors across the country and the prosecutors handling the relevant cases on the Minister's general directives or legal opinions to determine whether a policy can be implemented. When the Minister and the Prosecutor General disagree on criminal policy, there should be an established mechanism for communication so that responsibility can be clearly assigned.

To build a sound personnel system that promotes the best prosecutors and removes the unfit, the Prosecutors Personnel Review Committee should include outside members. Bringing in outside members would make the Committee more diverse and representative, reduce the influence of factional interests, strengthen prosecutors' independence in exercising their powers, and make the Committee's decisions more objective.