Print

Mail

wiki links

Legislation needed on prosecutors’ procedures

During the Kaohsiung MRT corruption trial, Tsai Kuo-jen (蔡國禎) of the Kaohsiung High Prosecutors’ Office quoted the verdict in the case of rioting among Thai laborers working on the MRT — saying that much of the investigation into that case at the Kaohsiung District Prosecutors’ Office had been conducted selectively. Tsai said he had confirmed with prosecutors who handled the initial investigation that State Prosecutor-General Chen Tsung-ming (陳聰明) had directed his subordinates to indict the accused to stem public criticism. Chen denied the allegation.

On one side is Chen, the highest-ranking prosecutor in the country. On the other side is the prosecutor who was responsible for the case. Who to believe? In response to queries during a legislative interpellation session, Minister of Justice Wang Ching-feng (王清峰) promised to produce a report in two weeks on the issue. However, even if the ministry were to produce the report on schedule, whether it would clear up the situation — without relying on blind faith — remains to be seen. However, we hope Wang will insist on an investigation with no cover-ups.

Article 63 of the Court Organization Act (法院組織法) stipulates that chief prosecutors, including the prosecutor-general, have the right to monitor and direct subordinates. Article 64 states that chief prosecutors and the prosecutor-general have the right to personally deal with cases being handled by subordinates, including the right to transfer cases to other prosecutors. The rights to direct, monitor, retract or transfer investigations are aimed at integrating the efforts of the entire prosecutorial body. After all, prosecutors represent the state in investigations. This is entirely different from the design of the judiciary, which emphasizes the independence of judges in upholding the law.

Hierarchical subordination of prosecutors is common practice, even though it leads to disputes. The key problem concerns the directions given by superiors to subordinates based on the details or results of an investigation. The question of how to determine whether the directions are reasonable or illegitimate intervention still requires clarification. This is why many reform-minded prosecutors have fought for more independence in investigations. Many prosecutors have sacrificed themselves by quitting their post in protest against intervention from superiors. Unfortunately, despite their sacrifices, the dispute has yet to be resolved.

The law grants chief prosecutors the great powers inherent in the concept of hierarchical subordination of prosecutors. However, it says nothing about implementation or procedure and this point should be addressed. For example, in order to unify investigative standards and prevent the abuse of power by individual prosecutors, superiors should have the right to request progress reports and access information on the cases. To prevent inappropriate intervention or lobbying, however, the superiors should provide a written explanation for their request.

Superiors should be able to take over the investigation of a case only under certain conditions and with a written explanation of their rationale. Internal channels for dispute resolution should be set up for the lower-level prosecutors to register their complaints.

The current complaint about the role of prosecutors highlights the need for new legislation that would clarify the role and responsibilities of prosecutors, top to bottom. Dedicated prosecutors should relish the opportunity to put their house in order instead of allowing their personal differences to become fodder for self-serving politicians. Wang should turn this crisis into an opportunity by pushing for new legislation to save the prosecutorial system.



Lin Feng-cheng is president of the Judicial Reform Foundation and a lawyer.

TRANSLATED BY ANGELA HONG
This story has been viewed 868 times.