During the process of criminal proceedings, prosecutors are a party to the litigation, and are therefore not fair or impartial participants in the trial.
For this reason, if we were to allow prosecutors to be a party to a case and provide them with an enforceable right to make a disposition, that would not only be unfair and unjust, but would be subject to abuse and overreach.
Therefore, in a modern democracy, a prosecutor should have no enforceable right to make a disposition whatsoever against a defendant.
This legal concept has long been established in Taiwan since the early 1990s, especially among legislators belonging to the Democratic Progressive Party (DPP), who requested a constitutional interpretation on the issue in 1995.
These legislators invited me to be the appraiser of the legal question submitted before the grand justices. As such, I went before the court and strongly advocated that they abolish prosecutors’ right to custody/pretrial detention, the motion of which was subsequently adopted by the grand justices.
In 1998, another appraiser went before the grand justices and proposed an interpretation for the abolition of prosecutors’ right to searches.
I was asked to comment on the matter, and I submitted an article in which I expounded upon my ideas that, as prosecutors were considered parties to legal cases, they should in no way have any enforceable power to make dispositions.
As a result, not only should prosecutors’ rights to searches be abolished, so too should their right to detain — restraining people’s freedom of movement — otherwise the reform could not be considered complete.
However, as the person who requested the interpretation only specified the prosecutors’ right to search, the interpretation did not broach the issue of the right to detain.
That being the case, this day, the fears I had at the time has come to pass.
When a problem with prosecutors occurs, they fully shift their responsibility to the police and do not reflect on the matter in the least, which is a problem for the nation and the public.
I am well aware that neither the legal world nor prosecutors are fond of outside criticism, but they must know that criticism is the driving force behind progress and without it, there could be no progress.
Huan Tong-shong is a former president of National Chung Hsing University.
Translated by Tim Smith
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