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Prosecutors’ powers go unchecked
By Wu Ching-chin 吳景欽
At an election rally on Nov. 26 last year, Chinese Nationalist Party (KMT)
Central Committee member Sean Lien (連勝文) was shot in the face and a bystander
was killed. With the detention period for the suspected gunman nearing its time
limit, charges have finally been brought against the man in custody.
The Banciao District Prosecutors’ Office only brought charges against the
detained suspect, Lin Cheng-wei (林正偉), based on the conclusion that there was
only one assailant who fired one bullet from one gun, causing one death and one
injury, without the involvement of any accomplice. Although people have doubts
about whether there were any accomplices, under the existing legal system, the
prosecutors’ decision on how to prosecute the case has to be accepted because
there is no way of altering it.
In Taiwan, prosecutors are not just in charge of investigations, they have many
other powers. For example, they have the power to direct and monitor the way
judicial police handle a case and the power to issue a warrant for the arrest of
an accused person. They also have the power after concluding an investigation to
drop the charges or defer an indictment against the accused, even if they
believe that person to be guilty. Prosecutors might make such a decision out of
concern for criminal policy, as long as the crime is not very serious, and the
result of their decision is hardly different from pronouncing a not-guilty
verdict.
The enormous powers in the hands of prosecutors can easily lead to abuses and
unscrupulous practices. For example, in the past, when prosecutors still had the
power to give the go-ahead for telephone wire-tapping, there was a case in which
prosecutors, who approved a wire-tap as part of an investigation into gambling
and match-fixing in professional baseball, had someone place bets for them based
on information they had overheard from the wire-tap and the prosecutors won big.
Another problem is that prosecutors can defer indictments in a wide range of
cases, which makes it hard to guarantee that the accused in some cases will not
try to persuade prosecutors to defer the indictments against them in exchange
for bribes.
Given the great extent of prosecutors’ powers and the potential for abuse, there
is an urgent need for some kind of counterbalance mechanism.
The existing legal system provides a system called “reconsideration of rulings,”
under which a plaintiff, if he or she thinks that prosecutors have acted
unlawfully or improperly by dropping charges or deferring an indictment, can
request more senior prosecutors to review the decision. This serves as a form of
self-regulation within the prosecutorial system.
If the more senior -prosecutors uphold the original decision, the plaintiff may
request a hearing in a court of law so that the court can deliberate on whether
the prosecutors’ ruling in the case was lawful and proper. This system might
appear to be an effective restraint on prosecutors’ powers, but in reality, it
has a blind spot because not every case has a plaintiff.
If there is no plaintiff, this system for overseeing the prosecution service
cannot be initated. Worse, this system of reconsideration of rulings and
bringing them to trial only applies to cases in which charges are dropped or
indictments deferred. If another kind of ruling were made, this system would not
apply at all.
With regard to the election-eve shooting, some of those directly involved, as
well as many people from the rival pan-blue and pan-green political camps, have
serious doubts about the conclusion that the shooting was the act of a lone
gunman. However, there is probably nothing they can do about it under the
existing legal system now that prosecutors have filed charges.
Although the case is to be handed over to the courts for trial, Article 266 of
the Code of Criminal Procedure (刑事訴訟法) stipulates that a prosecution shall not
affect a person other than the accused who was indicted by a prosecutor. So,
even if the court suspects that the prosecutors’ investigation was inadequate
and that there were other accomplices or accessories to the crime, the judges
trying the case — in their role as impartial third parties and according to the
principle of “no trial without complaint” — have no right to consider any
suspicions unless prosecutors bring charges against alleged accomplices.
As for the surviving victim, who is the person most interested in finding out
the truth of the case, he is neither plaintiff nor accused. He can only appear
in court and state his views in the role of a witness. If the victim were to
stand up in court and accuse prosecutors of having failed to conduct an adequate
investigation, it could actually undermine the prosecution and work to the
advantage of the accused.
Although many people have no faith in the conclusion of the prosecutors’
investigation in the Lien shooting and hope that more will be done to reveal the
truth behind it, under the existing legal system, once prosecutors have finished
their investigation there is hardly any means of altering their conclusions.
This situation highlights the fact that prosecutors in Taiwan have tremendous
powers with very little in the way of checks and balances.
Power cannot be left unlimited without sufficient checks, balances and
oversight, and internal oversight alone does not suffice.
Wu Ching-chin is an assistant professor in Alethia
University’s Department of Financial and Economic Law.
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