The move by the Ministry of Justice (MOJ) to file criminal charges against the pilots involved in the recent Singapore air crash is a clear case of prosecutorial zeal run amok. The MOJ seems to be prone to that fault lately. As reported in the Taipei Times (Nov. 11, page 2), "despite objections from foreign and local pilots associations, the justice ministry is adamant that it is going to prosecute the pilots ..."
To do so is an abuse of prosecutorial discretion. Prosecutors, in most criminal justice systems, have some degree of discretion in choosing what incidents to investigate and what cases to file charges in, as well as what specific charges to file. The degree of prosecutorial discretion varies from one system to another. Taiwanese prosecutors do not have much discretionary latitude by law. They do however have enough that they could decline to file charges in cases like the Singapore crash.
As a former prosecutor in the US, I found some of the statements quoted in the article "interesting" in the negative sense of the term. Minister of Justice Chen Ding-nan (
If the flight crews are subject to criminal liability then logic dictates that they tell the air safety investigators nothing. To use the American phrase, they "take the 5th." This greatly impedes the investigation which in turn has a very negative impact on air traffic safety. The goal of having safe air flight is a greater "good" than getting a single criminal prosecution. Ergo, from a public policy standpoint, the MOJ should decline criminal investigations or prosecutions in such cases as a general rule.
Prosecutions in such cases serve no policy ends. Civil servants, prosecutors among them, seem to constantly forget that their goal is not just follow the rules, but rather to follow the public policy behind the rules. That is to say the reason for the rules. To prosecute the aircrew in this case would not serve the broader goal of air safety. As one American investigator was quoted as saying; "Taiwan would be considered as remaining in the Stone Age if prosecutors really took such action."
The comment by the Taoyuan prosecutors' office, if not quoted out of context, was inane. They are quoted as saying "Whoever commits a crime in our territory is liable under our criminal law as long as Taiwan is a sovereign state. It is humiliating to the nation and inimical to its sovereignty not to handle the case in accordance with the law."
One can almost hear the shrillness in that comment. It appears to be a case of what "pop psychology" calls the Napoleon complex. That is the situation where a small person, small in whatever sense, who has an inferiority complex, again in whatever sense, goes about loudly and shrilly proclaiming that the entire world is trying to step on him. There have been numerous reported cases of the Napoleon complex in Taiwan. It seems to have stricken the Taoyuan prosecutors office.
As with Chen's comment, the Taoyuan prosecutor's comment misses the point. Deciding whether to prosecute or not has nothing to do with national sovereignty. It has everything to do with making a reasoned decision based on clear public policy considerations. In this case the prosecution should defer to the larger public policy concern of finding the causes of airline crashes which in turn can be used to make improvements in the air traffic system. That in turn leads to safer air travel for all.
It is my general policy to not criticize unless I can offer a concrete solution. In this case my solution is simple; don't prosecute the pilots and buy muzzles for prosecutors who can't talk reason in the media.
Brian Kennedy is an attorney who writes and teaches on criminal justice and human rights issues.
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