A Feeble Prosecution has turned the Justice System into a Crap Shoot

A Feeble Prosecution has turned the Justice System into a Crap Shoot
United Daily News editorial
translated by Bevin Chu
May 9, 2007


Left to Right: Prosecutors Chen Tsung-ming (陳聰明) Eric Chen (陳瑞仁) and Hou Kuan-jen (侯寬仁) of Taiwan's "Justice System

A Feeble Prosecution has turned the Justice System into a Crap Shoot
United Daily News editorial
translated by Bevin Chu
May 9, 2007

Prosecutor General Chen Tsung-ming yesterday convened a Chief Prosecutors' Conference to discuss the Discretionary Fund case. The conclusion of the conference was: Those already indicted will be handled by the courts. Those still being investigated will be dealt with on a case by case basis, based on subjective perceptions, objective circumstances, and other factors. This tells us that prosecutors at odds with each other will remain at odds with each other, and that the conference arrived at no conclusion whatsoever.

For prosecutors to be afraid of settling on a single standard, amounts to leaving defendants at the mercy of Lady Luck. If one runs into public prosecutor A, one is innocent. If one runs into public prosecutor B, one is guilty. If that is the case, what have district prosecutors' offices become, except crap shoots, and defendants high-stakes gamblers? What have public prosecutors throughout the island become, except religious inquisitors? One might as well allow defendants draw straws to determine whether they are guilty or innocent.

We believe this constitutes a serious dereliction of duty within the public prosecution system. Prior to the Chief Prosecutors' Conference, prosecutors conducted an opinion poll. Of the 16 local prosecutors willing to express in opinion, half thought the Discretionary Fund was public money. At the same time, half thought that officials who drew from the Discretionary Fund were innocent of wrongdoing. In other words, regardless of what the legal status of the Discretionary Fund might be, most public prosecutors thought that drawing from the Discretionary Fund did not constitute either criminal intent or deceit. They did not consider it a crime. Under such circumstances, public prosecutors should arrive at a clearcut legal opinion. Any yammering about "case by case determinations" is merely shirking one's responsibility.

The procedure officials must follow for drawing upon the Discretionary Fund is consistent. The uses to which the funds may be put and the procedures for verification must comply with the requirements of relevant accounting departments, and amount to long-established administrative convention. Therefore, unless a particular official has a special situation that demands special consideration, this is a non-issue, and what is the justification for "case by case determinations?" What would be the ruling government's reason for insisting on "case by case determinations," other than to selectively prosecute political enemies? What would be the public prosecutors' reason for "case by case determinations," other than fear of taking a stand against the ruling government? The same goes for the public prosecutors' canned remark that "Those already indicted will be handled by the courts."

It is precisely because the Discretionary Fund case has led to a "guilty in the north, innocent in the south" scenario, and because the DPP's "Four Princes" have been selectively spared prosecution, leading to gross injustice, that a unified opinion by public prosecutors is urgently needed. Therefore the public prosecutors should either decide that everyone is innocent, and allow the courts to understand the prosecutors' reasoning and defense attorneys to argue on behalf of their clients. Or, they should decide that everyone is guilty, and order district prosecutors and special investigative units to aggressively investigate and prosecute each and every case. As it is now, a solitary defendant is being used as a legal test case for all potential defendants, and all responsibility for the outcome is being pushed onto the shoulders of the courts, making judges susceptible to political attacks from different camps. This behavior is weak and irresponsible.

Speaking of Discretionary Fund cases, the rosters of the now defunct Prosecutor General Office's Anti-Corruption Center and its successor, the Special Investigative Unit, include Public Prosecutor Hou Kuan-jen. Initially, Hou resisted requests for coordination from the Tainan Public Prosecutor's Office. Hou hastily indicted Ma Ying-jeou, even as he intentionally avoided indicting the DPP's "Four Princes," behaving in an obviously unprofessional manner. Hou Kuan-jen declared that "The Four Princes will be indicted a month from now, due to manpower shortages." But as of today, many months have passed. The Anti-Corruption Center has been dissolved and the Special Investigative Unit has been formed. Would Public Prosecutor Hou Kuan-jen care to update us on the progress of his promised indictments of the DPP's Four Princes? Public Prosecutors assure us that they prosecute cases in accordance with the law, that they don't get involved in politics. But the way public prosecutors have handled the Discretionary Funds case, aggressively prosecuting certain individuals while shamelessly shielding others, means they are already involved in politics. If public prosecutors truly don't understand the distinction, then that is a reflection on their education and training. If, on the other hand, public prosectuors do understand the distinction, then their motive for behaving as they do is even more worth pondering.

Because of the Discretionary Fund case, at least one hundred defendants have been indicted. The public prosecutors' differences of opinon regarding the Discretionary Fund case will inevitably show up again and again under different circumstances. As a result, many individuals may be indicted on the heels of the Ma Ying-jeou case, even as many others evade prosecution. For anyone with an iota of respect for the rule of law, this is inconceivable.

Some people might say, even if prosecutors have differences of opinion, the defendant won't necessarily be found guilty. Some may look to the Judicial Yuan and even the High Court to reach a unified opinion. But even assuming this is the case, the indictment process itself is an ordeal. How will the injustice done to the defendant be compensated? To sum up, the prosecutors' refusal to take a stand is not only a dereliction of duty, it is a failure to uphold the spirit of justice.

In the past public prosecutors who defied their superiors' directives would be punished. When members of the public questioned the fairness of the system, prosecutors would always cite "uniformity of prosecution" as a shield. Today, when we truly need "uniformity of prosecution" in the pursuit of justice and equality, prosecutors have fallen silent, and the answer to the question, "Are prosecutors nothing more than political henchmen?" is abundantly clear.

Original Chinese below:

懦弱的檢方：司法成為各憑運氣的賭場！
【聯合報／社論】
2007.05.09 03:15 am

檢察總長陳聰明昨天召開檢察長會議討論特別費案，會議結論是：已起訴的案件由法院審理，偵辦中的案件則視主觀認知、客觀情形等作個案認定。這意味著分歧的檢方還是分歧，會議根本沒有結論。

檢方不敢定出統一標準，形同聽任被告各憑運氣；碰上甲檢察官無罪，碰上乙就有罪。那麼，各地檢察署豈非成了司法賭場，被告但看手氣；而全國檢察官豈非成了神棍，讓被告抽籤決定有罪無罪即可！

我們認為，這是檢察體系的嚴重失職。在檢察長會議前，檢方曾進行各地檢署檢察官之意見調查，調查結果，在願意表示意見的十六個地檢署中，認為以領據支領的特別費是公款的佔半數，但同時認為支領首長不構成犯罪的也佔半數。換言之，不論以領據支領的特別費之法律性質為何，多數檢察官認為領用首長沒有犯罪故意，以及未使用詐術，而認定不構成犯罪。在此情況下，檢方理當作出一定的見解方屬合理，所謂「個案認定」根本是推卸責任。

就所有領用特別費的首長而言，其支領程序其實是一致的，即按照會計單位的要求辦理；就用途及核銷等而言，亦屬行之有年的行政慣例。因此，除非某一特定首長確有特殊情形而待另行檢討，否則這類以領據領用特別費的爭議案情幾為一致，又何來個案認定的餘地？所謂個案認定之說，當然只是不敢表態的託詞。

至於已起訴的案件聽由法院審理云云，更是遁詞。正因特別費案出現「北有罪，南無罪」的歧異，又有民進黨四大天王涉案遲未處理，造成了極不公平的狀態，亟須由檢方表示統一的意見。因此，檢方應有的作為是：或者決定採無罪說，讓法院瞭解檢方立場，讓辯護人得為被告主張；或者決定採有罪說，而命各地檢署及特偵組積極偵辦其他案件。但像現在這樣，由單一被告為所有潛在被告充當法律實驗品，然後將全部作決定的負擔及風險推給法院，讓法官的判決承受可能來自不同政治陣營的批判，這委實是非常不負責任且懦弱的表現。

說到其他特別費案，從高檢署查黑中心時代到現在的特偵組都列名其中的侯寬仁檢察官，先是拒絕南檢協調要求、急於起訴馬英九於前，卻又故意擱置了民進黨四大天王案於後，顯然最失專業立場。侯寬仁曾說，「四大天王案接案晚一個月、人手不足」所以未辦；但如今，不知幾個月過去了，查黑中心亦已轉成了特偵組，試問侯檢察官目前的進度又在哪裡？檢察官自稱依法辦案，不管政治；但對個案積極偵辦或消極處理，緩急之差異確已造成影響，其實就已經介入了政治。倘謂檢察官對於這一點不能瞭解，那真的有負其所受教育訓練；而若檢察官知道其中的利害關係竟仍然這樣做，居心何在，便殊堪玩味了。

如今因特別費而成被告者至少已百餘案。檢方聽任特別費案意見分歧，則各地檢署受理的案件勢必仍將出現相同案件、不同處理的情況；於是，繼馬英九之後，將有許多人可能因此而遭起訴，但也可能有許多人避開了官司。這對國家法律正義來說，實為不可想像的景況。

或有人說，縱然檢方意見分歧，但起訴到法院也未必定罪；甚至寄望司法院乃至最高法院會考慮統一見解。然而，即使如此，訴訟過程中造成當事人受到的不利境遇，又將如何彌補？總之，檢方這次懦弱不表態的處理，非但失職，亦喪失了主持正義的司法精神。

過去有檢察官辦案不聽上級指揮受到懲處，各界一有質疑，檢方總是搬出「檢察一體」作為擋箭牌。如今，真正需要「檢察一體」，以統一見解來追求公平正義的時候，卻成了噤聲寒蟬。檢方是不是政治打手，現在已是十分清楚了！