The Ministry of Justice recently announced a major personnel reshuffle, which will see the head of the Taipei District Prosecutors’ Office replaced by the deputy minister of justice. The appointment has drawn considerable attention given its possible impact on the investigation of several cases involving former president Ma Ying-jeou (馬英九).
Although prosecutors are subordinate to the ministry, according to Article 86, Paragraph 1 of the Judges Act (法官法), they must work independently when prosecuting suspects.
The only exception is when a chief prosecutor — in accordance with the principle of procuratorial integration and their duties as supervisor — provides instructions to prosecutors on how to handle a case.
That is, the minister of justice is the supervisor of the prosecutors only in the nominal sense, as the minister has no right to instruct them. The only way the minister might exert influence on individual cases is by making use of the power to appoint or transfer personnel in the prosecutors’ office.
For example, the Taipei District Prosecutors’ Office has yet to summon Ma for questioning, although it has been a while since several charges were lodged against him.
Changing the office’s chief prosecutor might help change the atmosphere, especially considering that a chief prosecutor, as per Article 92, Paragraph 2 of the Judges Act, can give orders to a subordinate prosecutor regarding the investigation and prosecution of a case — as long as they provide a written document specifying the reason for such an instruction.
In addition, as per Article 64 of the Organic Act of Courts (法院組織法), when a prosecutor shows incompetence in handling a case, whether due to negligence or inability, a chief prosecutor can take over the case or reassign it to be investigated by another prosecutor.
These are only a few examples of how a chief prosecutor can substantially influence a prosecution.
Nevertheless, a chief prosecutor’s supervisory power is not unlimited. An example is the case involving Ma and former prosecutor-general Huang Shih-ming (黃世銘), who allegedly leaked wiretaps of Democratic Progressive Party (DPP) caucus whip Ker Chien-ming (柯建銘) on Ma’s instructions.
The case came to light after a political feud between Ma and then-legislative speaker Wang Jin-pyng (王金平) in September 2013.
Ker has since pressed charges against Ma for soliciting Huang to disclose secret information, and as the litigation is still ongoing, prosecutors cannot initiate another case against Ma for the same offense.
The only thing they can do, as per Article 323, Paragraph 2 of the Code of Criminal Procedure (刑事訴訟法), is refer the case to a court. The replacement of the current Taipei district chief prosecutor would not change anything.
Probably more pertinent to the present discussion is the case of the Taipei Dome, which might be expedited once the current chief prosecutor is replaced.
A key question here is whether Ma personally agreed to the exemption of royalties when he negotiated, as Taipei mayor, with the Taipei Dome contractor.
In terms of what a build-operate-transfer contract should contain, Article 11 of the Act for Promotion of Private Participation in Infrastructure Projects (促進參與公共建設法) provides a list of things which such contracts might include, but does not say which ones are absolutely necessary.
It would therefore be difficult to convince the court that Ma was intent on profiting through illegal means.
A bigger problem is that attempted corruption is not punishable by law. If the Taipei City Government decides to end or cancel its contract with Farglory Group for the Dome project, the project would be aborted and thus unprofitable.
In addition, there would be a lengthy litigation between the government and the contractor over possible compensation.
Should this happen, even if Ma had attempted numerous times to profit from the project, such efforts would only be considered failed attempts to make illegal benefits and therefore not punishable under the Criminal Code. Such an outcome would not change even if there were a new chief prosecutor.
What is more significant here is how much hope is placed on the new chief prosecutor to do something as simple as initiating a prosecution process. This is not only sad, but also incredibly unfortunate.
Wu Ching-chin is an associate professor in and chair of Aletheia University’s law department.
Translated by Tu Yu-an
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