The Nation's Justice System Must Not Be Undermined

The Nation's Justice System Must Not Be Undermined
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
June 30, 2010

The Taipei District Court has handed down its decision in the Lafayette Frigate case. Lei Hsueh-ming and several other naval officers have been found not guilty. The judge explained his decision, saying that prosecutors offered no evidence of illegal profiteering. These particular defendants had nothing to do with the kickbacks. The court decision vindicates Taipei District Prosecutor Huang Shi-ming, who refused to prosecute the defendants even though it cost him his job.

President Chen Shui-bian once vowed to prosecute this case "even if it shook the nation to its foundations." It has now been shown that prosecutors perverted the law by persisting in a wrongful prosecution. They undermined the authority of the justice system, and shook the foundations of the justice system.

Nine years ago, under pressure from Chen Shui-bian, Prosecutor-General Lu Jen-fa spoke to Huang Shi-ming for nine straight hours, deep into the night. But he could not persuade Huang Shi-ming to prosecute the Lafayette Frigate case. Huang Shi-ming, who had been Prosecutor General for only ten months, was immediately fired. As soon his replacement was found, the Lafayette Frigate case went ahead, in accordance with the wishes of higher ups. Today, after nine years of wrangling in the courts, this politically-motivated fiasco has been exposed for what it is -- wrongful prosecution.

The prosecutorial system is said to be "a unified system." Higher level prosecutors exercise considerable authority over lower level prosecutors. But in order to maintain the credibility of the prosecutorial system, they must resist political pressure, and ensure that prosecutors are able to prosecute cases immune from political interference. This of course is the Chief Prosecutor's job. But what if the Chief Prosecutor himself tolerates political interference, or even invites it from those in positions of power? What if prosecutors have no qualms about abusing their authority, and force subordinates to serve the needs of powerful politicians? Then they have debased themselves, turned the prosecutorial system into a political tool, and undermined the credibility of the prosecutorial system, When people lose respect for the nation's legal system, the consequences are serious indeed. Prosecutor General Huang Shi-ming has blown the lid off this case of intervention by the Chief Prosecutor. If the prosecutorial system fails to deal with this case in earnest, it cannot allay the nation's doubts.

The review and reform of the prosecutorial system must address at least two issues. First, it must seek accountability. If a prosecutor betrays his professional responsibility and enages in indiscriminate prosecutions, he has violated Article 25 of the Criminal Code, and is guilty of "abuse of prosecutorial authority." Some may say that the charges listed in this section exist in name only. Many cases have been handled outrageously. One never sees justice system officials prosecuting their own family members. Hou Kuan-jen falsified court records in an effort to railroad Ma Ying-jeou, but he was never punished for it. This is precisely why unscrupulous prosecutors who engage in arbitrary prosecutions for ulterior motives have nothing to fear. This is why whether the defendants are found guilty in this case or not, prosecutors must nevertheless clean house. They must be thorough. Even they find that no crimes were been committed, these cases must be investigated for dereliction of duty, as a warning to future offenders.

Secondly, the unified prosecutorial system must establish a monitoring system to limit the power of the chief prosecutor. Take the Lafayette Frigate case. When the prosecutor in charge disagreed with the original prosecutor, the chief prosecutor abused his authority by reassigning him and replacing him with someone more obedient. A unified prosecutorial system that repaces prosecutors with those more obedient hardly meets the requirements of justice. Therefore prosecutors must establish ground rules for chief prosecutors who reassign subordinates. Judges are assigned to one case and not another according to certain criteria. Once they have been assigned, they may not be arbitrarily reassigned. Prosectors are similar. They too must handle cases on a professional basis. The rules for by which they are assigned need not be as strict. But criteria must nevertheless be established. Otherwise the same problems will recur. When judges encounter conflicts of interest, they can be reassigned by a conference of presiding judges. The prosecutorial system must establish a similar mechanism for the prosecutors. This will allow subordinates to speak up on their own behalf.

The prosecutorial system must engage in self-examination. Prosecutors owe the defendants in the Lafayette Frigate case an explanation. Had the prosecutor in charge not been changed, Lei Hsueh-ming and the other naval officers might have been spared a ten year legal ordeal. They may have been acquitted, but have they really received justice? The case files have been examined under a microscope for the past ten years. The warship procurement process has been reviewed from beginning to end. Does the prosecution really intend to appeal?

The facts behind the Chen Shui-bian corruption case continue to emerge. One of the most shocking revelations is how the Chen regime undermined the independence of the judiciary. Bureau of Investigation Chief Yeh Sheng-mao served as President Chen's hatchetman. Justice Minister Shi Mao-lin, and Prosecutor General Chen Tsung-ming dined at the home of Chen Shui-bian crony Huang Fang-yan. Public Prosecutor General Lu Jen-fa pressured Taipei City Chief Prosecutor Huang Shi-ming to prosecute the Lafayette Frigate case. These scandals have shaken the foundations of the nation's justice system. It is now time to heal these wounds.

不可動搖司法國本
【聯合報╱社論】
2010.06.30 01:48 am

拉法葉艦案台北地方法院日前宣判，雷學明等海軍軍官均無罪。法官在判決理由中指出，檢方所控「浮報價額圖利法方」並無證據，佣金亦與被告等無關；這個判決，間接證明了當年的台北地檢署檢察長黃世銘的決定是正確的，他寧可丟官亦不同意起訴。

本案是在陳水扁任總統時「即使動搖國本也要辦到底」的政治宣示下，進行司法偵查並起訴；如今證明檢方有枉法濫訴情事，不啻傷害了司法威信，險些動搖了司法的「國本」。

九年多前，檢察總長盧仁發受到陳水扁的政治壓力，與黃世銘徹夜長談九個小時，惟仍無法說服黃世銘同意起訴拉法葉艦案。黃世銘旋即丟了任期僅僅十個月的北檢檢察長的職位；換人之後，拉案即如檢方上級的意志起訴了。如今，這樁當年被政治運作的案件，經過法院九年多審理，卻被證明為一大錯案。

檢察系統既稱「檢察一體」，上級檢察首長對下級有實質的指揮權力，則如何維護檢方的公信力，抗拒一切政治壓力，以確保檢察官依法辦案，不受干預，當然就是檢察首長的重責大任。反之，若檢察首長自己就先接受了政治干預，或為迎合當權者的意向，竟不惜動用檢察一體的權力，來迫使下屬就範，服務於政治高層，那就是自甘墮落，且使檢察系統淪為政治工具，破壞檢方的公信力。檢方的公信力受到破壞，將使國人對國家法律秩序失去信仰和尊重，其後果是非常嚴重的。黃世銘檢察總長既然揭露了當年這段最高檢察首長干預案件的內幕和真相，若檢察系統對本案沒有一個認真的檢討處理，恐怕是難以面對國人的質疑。

我們認為，檢察系統的檢討和處理，至少應包括兩個方向：第一，應當追究責任。倘若檢察官違背專業良知，濫行起訴，那是涉犯刑法第一百二十五條的「濫權追訴罪」。固然，許多人批評，刑法本條罪名形同虛設，諸多處理得荒唐離譜的案件，從未見到司法界追究過自家人，即使是檢察官侯寬仁筆錄造假起訴馬英九，亦未受處分；但正因如此，縱然有不肖檢察官以特定目的濫行偵辦起訴，亦有恃無恐。所以，本案不論是否成罪，檢方都必須自清，認真調查；縱然調查結果不構成犯罪，亦當追究辦案草率的行政責任，以茲警惕。

第二，應當重新設定檢察一體的首長權力界限，建立監督機制。以拉案為例，當承辦檢察署的檢察長和原檢察官都不同意起訴時，最高首長竟有權力立即調動其職位，換上聽話的檢察長，再換上聽話的檢察官，這種檢察一體的權力行使，毫無疑問是不符正義，不正確的。因此，檢察首長在什麼條件下有權調動正偵辦案件的下屬，檢方實應制定一套行事準則。因為，法官分案有一定準則，分案之後不能任意改動；檢察官既然仍有司法官的性質，並依循專業辦案，雖不能像法官分案後不得更動那樣硬性規定，但一定的分際是應當制定出來的，否則弊病難防。同時，就像法官分案後若有疑義，有庭長會議來處理；檢察系統亦當建立案件換人的爭議處理機制，俾給下屬申辯的機會。

除了檢察系統自我檢討之外，檢方實應給拉案當事人一個合理的交代。回到當年，倘若本案沒有換人承辦，雷學明等軍官就未必會步上纏訟十年的噩運；如今，雖然法院判決無罪，這種公道又該如何還？難道在法院十年審理，看遍當年購艦的全部檔案文卷，仔細檢視了全部購艦過程之後，檢方還要上訴嗎？

扁案真相不斷揭露，其中最駭人聽聞者，是扁政府對司法獨立地位的嚴重戕害。調查局長葉盛茂當總統的「爪耙子」，法務部長施茂林、檢察總長陳聰明在總統親信黃芳彥家吃春酒，加上檢察總長盧仁發壓迫北檢檢察長黃世銘起訴拉法葉艦案……。這些，皆是「動搖司法國本」的天大醜聞，現在已到了療傷止痛的時候了。