Battle rages over power to issue search warrants

The recent search of the China Times Express newsroom has raised the issue of whether prosecutors should be stripped of their current powers to carry out searches and seizures without first obtaining court-granted warrants.

One group of legislators has proposed a draft amendment to the code of criminal procedure that would curtail prosecutorial powers in precisely this way, and another is expected this week.

While the media group owning the China Times Express has trumpeted the merits of such a change to the legal system, many legal professionals said that there are many factors that need to be taken into account and cautioned against a precipitate change to the current system.

The debate revolves around the conflict between the protection of civil rights and the efficiency of criminal investigations.

The China Times Express, in its appeal to the court challenging the validity of the prosecutor's search, says that practice under the current system "inevitably violates fundamental human rights."

It says that the current situation, in which the prosecution is able to initiate searches and seizures of its own volition is a breach of the constitutional principle of the separation of powers.

Prosecutors, under the current system, issue warrants for their own searches.

"It is inevitable that prosecutors will play both player and referee," the newspaper says.

Yu Ying-fu (尤英夫), law professor at Fu Jen Catholic University, agreed saying that one more check on the system would help to prevent the abuse of power.

"A problem of current practice is that prosecutors may be too subjective," Yu said.

Prosecutors are, not surprisingly, generally reluctant to accept a change that would take away their power to search, although some acknowledge the merits of the case for doing so.

Chen Jui-jen (陳瑞仁), a Shihlin District Court prosecutor and a key figure in the Prosecutors' Reform Association (檢察官改革協會), said such a change would only be acceptable if some conditions were stipulated.

He said judges who examine prosecutors' petitions for warrants should become part of a separate institution from judges who try cases -- as in the US or French systems.

"Otherwise the judges might not be neutral [in the cases they try] if it was themselves or their colleagues who dealt with the application for warrants," he said.

Equally importantly, he noted, the judges or magistrates in charge of decisions on warrants should be senior and experienced.

"They would best be former prosecutors, in fact, in order that they are familiar with criminal investigations and understand the situations in which a warrant is necessary," Chen said.

It is a widely criticized aspect of Taiwan's judicial system that judges and prosecutors are too young and lack experience.

Another important concern relates to "rule of evidence," Chen said. While a conviction must be "beyond reasonable doubt," the issue of a search warrant need only be based on "probable cause."

"The distinction of these two things is not clearly defined enough in our law. And if the courts confuse the two, asking for too strict a degree of evidence when deciding whether to issue a warrant, then many necessary search petitions would be denied and thus the effectiveness of criminal investigations jeopardized."

A public prosecutor at the Ministry of Justice's Department of Prosecutorial Affairs, Albert Tsai (蔡秋明), expressed similar concerns.