Ersatz "Prosecutorial Independence"

Ersatz "Prosecutorial Independence"
China Times editorial (Taipei, Taiwan, ROC)
A Translation
September 19, 2008

The eight prosecutors of the Special Investigative Unit called a press conference. They stood before the media in single row and vowed that the State Affairs Fund case and the Chen Family money-laundering case would be concluded by the end of the year. If they weren't, they said they would resign, en masse. They said they stepped forward because they wanted the public to respect "prosecutorial independence." They didn't want prosecutors to have to cope with public opinion based on false information. They wanted to reaffirm the Special Investigative Unit's solidarity with the Prosecutor General. They said Chen Tsung-min had a duty to oversee and guide the Special Investigative Unit, and could not legally shirk that responsibility.

The prosecutors' collective announcement of a deadline for the conclusion of their investigation, ranks among the rarer spectacles in law enforcement history. On the surface, they were trumpeting their "prosecutorial independence." In fact they were falling over each other concocting excuses for Chen Tsung-ming, assuring the public that Chen need not recuse himself, and could continue clinging to his official position. Isn't this sort of "independence" a little too cheap and easy to come by?

Prosecutors who boast of "prosecutorial independence" are merely indulging in self aggrandizement. Prosecutors, like judges, enjoy lifetime tenure. But they are also bound by expectations of "prosecutorial solidarity." How can they present themselves as paragons of "prosecutorial independence?" Judges speak of judicial independence. No official may interfere with a trial judge's rulings. Judges must not fear passing judgments upon their "superiors." Prosecutors on the other hand, receive their marching orders from the Prosecutor General. They never were independent to begin with. When they invoke the term "Independence" merely to defy the media and curry favor with their boss, the term "prosecutorial independence" loses all meaning.

The Special Investigative Unit was authorized by the Organic Law of the Court. Its arrangement does suggest some sort of independence. But what sort of independence does it call for? Independence from the media? What prosecutor shouldn't be independent of the media? Should "prosecutorial independence" be the exclusive prerogative of the Special Investigative Unit? If Special Investigative Unit prosecutors want to trumpet their "independence," they might want to demonstrate their "independence" from high ranking officials. They must not fear them. They must not be afraid to prosecute their superiors' cronies. They must heed their consciences. They must be Impartial and incorruptible. Prosecutors of the Special Investigative Unit stood before the media in a single row. They were all unwilling to investigate their boss. They were all afraid to be the odd man out. They were all eager to proclaim their "prosecutorial independence."

If the nation is going to have special prosecutors, then special prosecutors must have the courage to investigate those in power. High ranking officials of the previous administration are out of office as a result of the change in ruling parties. Even if the cases before them were referred to ordinary prosecutors, the public should not have to worry about whether they are being properly handled. Who knew the prosecutors of the Special Investigative Unit would respond, full force? Who knew that when investigating high ranking officials of the previous administration, they would apply an entirely different set of standards? We have described in detail how their attitude towards the High and the Mighty and ordinary citizens is as different as night and day. They fawn over current administration officials, even those merely one rank above themselves. What kind of obsequious accomodations are they capable of in the event they encounter an even higher official? One can only imagine. Isn't all this talk of "independence" just a little over the top?

In fact, we really don't expect prosecutors to handle their cases with the same independence as judges. We merely hope that fear of their superiors will not overpower their consciences, not to mention, the rule of law. When Chen Tsung-ming hosted a banquet, his guests included Chen family money laundering suspect Huang Fang-yen. Yeh Sheng-mao has repeatedly stated that Chen Tsung-ming knew all about A Bian's money laundering activities a long time ago. Chen Tsung-ming heads up the Special Investigative Unit and is personally involved in investigating the money-laundering case. Shouldn't he recuse himself? Shouldn't he know when to hold, and know when to fold? Has the Special Investigative Unit really investigated Chen Tsung-ming the way it does others? Why hasn't it? The answer of course is in the press release issued by the eight prosecutors. The Special Investigative Unit has reaffirmed its solidarity with Chen Tsung-ming. The Special Investigative Unit and Chen Tsung-ming are flesh and blood. Chen Tsung-ming has already aroused suspicion among the general public. What standards did the Special Investigative Unit apply when it concluded that Chen Tsung-ming was in "no danger of neglecting his duties due to personal biases?" Were they objective standards an ordinary person would apply according to his independent judgment? Or were they the kind of standards underlings would apply, just after they reaffirmed their solidarity with their superior? How exactly is the term "independent" defined in the Special Investigative Unit's dictionary?

Chen Tsung-ming did not show his face during this unprecedented press conference. Members of the Special Investigative Unit unstintingly shredded their own credibility. Their boss surely appreciates their gesture. They expressed their "independence" from the media. Applying the kind of standards underlings would for their superior, they suggested that he need not recuse himself. From their boss' perspective, their conduct undoubtedly qualified as "independent." Yesterday the Prosecutor General hand picked and promoted every member of the Special Investigative Unit. Today the boss is in trouble. To make sure he is not swept out of office, to make sure he won't have to recuse himself, they are willing to go through hell and high water. To repay their debt, they are willing to die horrific deaths. Their boss really should be overwhelmed with gratitude.

Should the allegiance the eight prosecutors of the Special Investigative Unit are showing their boss be equated with "independence?" We don't know. The prosecutors boast of their "prosecutorial independence." Let them have their say. They failed to demonstrate any "independence" before their superiors in the current administration. They failed to demonstrate any "independence" by prosecuting High and the Mighty members of the previous administration. Let them posture before the public, in shameless defiance of the gods. Perhaps that constitutes "independence" of a sort. They are already independent of President Ma Ying-jeou, Premier Liu Chao-hsuan, and Minister of Jusice Wang Ching-feng. They are already independent of the Control Yuan, which is itching to take action but lacks the constitutional authority. Under the circumstances, what can hapless members of the public do but lower their heads and sigh?

中時電子報
中國時報 　2008.09.19
虛矯的檢察「獨立」
中時社論

特偵組八位檢察官一字排開舉行記者會，表示國務費案與洗錢案將於年底前結案，若不辦出個結果，該組檢察官就全體下台。之所以全體站出來，是希望外界尊重司 法獨立，不要讓檢察官一面辦案還要一面應付不實資訊形成的輿論壓力；也要表達「檢察總長與特偵組一體」，陳聰明基於法定職責督導特偵組，並無法律上迴避之 理由。

檢察官集體預告偵辦案的結案時間，堪稱檢察執法的奇觀，口中強調「獨立」辦案，骨子裡怕只是為了支持長官陳聰明不必迴避，繼續戀棧而已。說到「獨立」二字，是否廉價了些？

其實，檢察官要適用「司法獨立」的觀念，不免自抹胭脂。他們雖然像法官一樣享受終身職的特殊待遇，卻是受制於「檢察一體原則」，何能標榜自己是「司法獨 立」的代表？法院講求審判獨立，每位法官審判，都不受任何首長過問干涉，而且必須排除心中的長官魔障。檢察官應受檢察首長指揮團隊辦案，本無獨立可言。 「獨立」二字如果只是用來對抗媒體，以便迎合長官，會讓「司法獨立」原味盡失。

特偵組的設置，從法院組織法規定來說，似乎確有某種「獨立」的味道。然而，法律如果真有「獨立」的要求，只在要求獨立於媒體辦案嗎？試問那位檢察官不該獨 立於媒體辦案，何獨以特偵組檢察官為然？特偵組檢察官如果要說「獨立」，就應該「獨立」於高層威勢影響辦案，不畏高官權貴，不計長官情面。特偵組檢察官應 該接受檢察首長指揮辦案，但若遇到檢察首長涉案，也要獨立於長官部屬的情誼關係之外，堅持法律良心，鐵面無私。現在全體組員一字排開，調查長官無人向前， 迎合長官人人恐後，「獨立」云乎哉！

嚴格來說，國家如果需要某種獨立檢察官，必就是要他們敢於調查「當朝的」權勢高官，無所畏懼。「前朝的」高層人士，因為政黨輪替而失勢，即使交由一般檢察 官辦案，也不會擔心他們辦案不力。誰料特偵組全組檢察官傾力而出，偵辦前朝高官顯貴，也是大失常態，我們曾經詳為描繪，其逢迎百態與平常針對一般小民的雄 壯威武相比，有天壤之別；而對當朝高層，只不過是官高一等的直屬長官，竟也如此不堪，要是遇上更高的長官犯案，會有什麼樣的腰桿能耐？可想而知！說是「獨 立」，會不會太沈重了一些？

我們其實並不寄望檢察官真的能如法官一樣獨立辦案，只是希望他們在辦案時不要讓心中的「長官魔障」掩蓋法治良心罷了。陳聰明宴請疑似參與洗錢的黃芳彥在 前，又遭葉盛茂幾度當眾指控早知阿扁洗錢情資在後，他也正是率領特偵組全員親身參與偵辦阿扁洗錢案的檢察首長，不該自請迴避？不該知所進退？特偵組曾像偵 查旁人一樣正式偵查過陳聰明嗎？為什麼不？道理難道就在八位檢察官舉行記者會的聲明裡面 ︱因為特偵組與陳聰明已是一體？陳聰明已然深受一般輿情質疑，特偵組是用什麼標準說他沒有「足認其執行職務有偏頗之虞」的情形呢？是依一般人的客觀標準 「獨立」判斷嗎？還是屬下與長官合為一體後找到了體貼遷就的標準？特偵組檢察官的字典裡面，「獨立」二字究竟如何寫法？

這個破天荒的記者會，陳聰明沒露面，特偵組全員卻似賠上特偵組的信譽，也毫不吝惜。看在長官眼裡，應該相當受用。「獨立」於媒體之外，使用部屬的標準支持 長官不必迴避，對長官而言，這當然算是夠「獨立」了。當年由檢察總長一個一個欽點提拔而進入特偵組的檢察官，現在為了拯救長官蒙難，為了支持長官絕不離 職、絕不縮手不管此案，赴湯蹈火，在所不辭，肝腦塗地，以報知遇，長官也該感到欣慰了。

然而，特偵組八位檢察官效忠長官的忠肝義膽，就等於「獨立」嗎？我們不好說。檢察官標榜自己司法獨立，就讓他們說吧，畢竟，他們雖然未在當朝長官發生問題 時表現獨立，也未在前朝權貴犯案時展現如辦其他一般案件的獨立，只要能夠傲然於輿論之前，不慚清議，不咎神明，也算是一種獨立吧！他們已經獨立到連馬英九 總統、劉兆玄院長、王清峰部長、監察院對他們也無可奈何的程度，升斗小民就自己摸摸鼻子囉！