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When will the prosecutors who ignore the law be disciplined?

When will illegitimate prosecutors be fired?

2010-05-17

How can a nation claim to follow the rule of law when public prosecutors commonly manipulate evidence and violate the principle of private investigation? What has the judicial reform over the past 10 years achieved?

Nothing can be done to an illegitimate prosecutor who exceeds legal authority after a 10 year recourse period?

The widely known case of Tai Ji Men which began 1996 was ruled not guilty by the Highest Court on July 13, 2007 following two non-guilty rulings in the first and second court trials. Prosecutor Ho Kuan Ren’s unlawful conduct during the investigation period was investigated by the Control Yuan. The Control Yuan outlined 8 flaws of Prosecutor Ho’s investigation including violating the principle of confidentiality, engaging in illegal searches, unlawfully freezing personal assets, exceeding legal authority and illegally demanding that all Tai Ji Men Academies be disbanded by sending notices to city and county governments. Prosecutor Ho Kuan Ren also violated the principle of evidence when the bill of indictment exhibited obvious contradictions against the available evidences. The Control Yuan compiled the Tai Ji Men case into the Third General Report on the Work of Human Rights Protection of the Control Yuan as an example of important case of human rights protection. A copy of the report was sent to the Ministry of Justice to ascertain the appropriate disciplinary actions that should be taken against Prosecutor Ho Kuan Jen.

A recent report was sent to the Control Yuan from the Taiwan High Prosecutors Office. The report concluded that legal actions against Prosecutor Ho should have been taken by June 18, 2007. It stated that Prosecutor Ho sent notice to Taipei City Government on June 18, 1997 demanding the shutdown of the supply of water and electricity and the recourse period started from the day the notices were sent and lasted for 10 years. If no actions had been taken during the recourse period, the defendant is no longer able to seek justice for administrative responsibilities.

The report by Taiwan High Prosecutors Office has generated a wide spread public outcry. What the report implies is that victims of unlawful cases will not be able to receive redress if the case was dragged out longer than 10 years. Taiwan High Prosecutors Office, without acknowledging the public discontent, issued a press releases on March 29, 1010, saying three prosecutors were appointed to re-examine the Tai Ji Men case, with assistance from the Taipei District Prosecutors Office, and found no obvious mishandling of the case, and reports have been filed with Ministry of Justice dated April 30, 2008, May 14, 2008, March 13, 2009 and December 14, 2009.

In recognition of the public outcry about the 10-year recourse period against government officer’s misconduct, the Taiwan High Prosecutors Office issued a special press release to explain that the Prosecutors Office has investigated for 8 years without finding any evidence of misconduct. The statement brought further protests and exposed a cover-up between the different branches of governmental organizations.

Legislators accuse the Ministry of Justice and Taiwan High Prosecutors Office of covering up illegitimate activities. It is a violation of human rights protections to allow under-qualified rogue prosecutors to stay on the job.

In the meeting of the Judiciary and Organic Laws and Statutes Committee on April 8, 2010, 34 legislators interrogated the new Minister of Justice, Tseng Yung Fu. Legislator Lo Shu-Lei pointed out that “according to statistics from the Judicial Yuan, more than 200 cases are outstanding with litigation of over 10 years. In addition, in the 6,542 cases ruled by Highest Court in 2008, 697 cases were ruled not guilty. In other words, roughly 10% of the cases were unjustified. Taking the Tai Ji Men case as an example; the case dragged on for 10 years and 7 months with 14 judges presiding, 8 public prosecutors, 58 court hearings, 4,654 testimonies, 5,525 statements, 206 inquires from tax authorities, 12 boxes of evidences, close to 200 witnesses. On July 13, 2007, the final ruling from the Highest Court confirmed a verdict of not guilty, with no fraud, no evasion of taxes and no violations of tax codes. Our government even awarded compensation of NT$ 1.84 million for unjust persecution to the 4 defendants. This is so obviously an unjust case. The Control Yuan also sent reports to Ministry of Justice to seek disciplinary actions against Prosecutor Ho for exceeding his legal authority. But now the Ministry of Justice just said that the recourse period has expired and no further legal actions should be taken against the wrongdoing of the prosecutor. Isn’t this a cover up for an illegitimate prosecutor?”

Legislator Lo Shu-Lei further said “the compensation for unjust cases is borne by taxpayers, while the Ministry of Justice never seeks compensation from prosecutors. From 1999 to 2008, a total of 5,435 people received compensation for unjust cases totaling more than NT$ 4.68 billion. No prosecutors have ever been disciplined for unjust cases brought with illegal and unlawful authority. We pick up the bill while prosecutors enjoy protections and escape disciplinary actions. Is this fair?”

Legislator Tian Qiu-Jin interrogated Minister Tseng Yung Fu, asking if it is lawful to send notices to city and county governments demanding to shut down the supply of water and electricity when the defendant has not been convicted?

Legislator Tian Qiu-Jin further said. “The wife of one of the Tai Ji Men dizi held in custody by Prosecutor Ho was then a specialist at the Ministry of Justice. After being interrogated by Prosecutor Ho, she was brought down to basement with her head covered. Prosecutor Ho said to the Tai Ji Men dizi in custody, “Look what you have done to your wife. Confess now and say your Zhang-men-ren’s Kungfu is fake.” The Tai Ji Men dizi was yelled at by Prosecutor Ho because he said Zhang-men-ren does have real Kungfu. His wife was forced to retire early due to the incident. This example is only one of many people who suffered back then because of this unjust case. Some families were divorced. Some were diagnosed with sicknesses. So why we are here today is to debate the issue of prosecutors exceeding their legal powers and prosecuting cases without lawful grounds.”

During Legislator Tian Qiu-Jin’s interrogation, a tape of an interview with Prosecutor Ho Kuan Ren by the TV host, Li Si-Duan on May 5, 1997 was played.

Li Si-Duan: what is Zhang-men-ren’s reaction when he learned of your charge?
Ho Kuan Ren: Of course, he would definitely deny it. But I saw a shadow pass by his eyes. Based upon my instincts, I believe he must have raised little (demonic) spirits.

Minister Tseng Yung Fu explained immediately “It is required by law to have definitive and direct evidence to convict a suspect of crimes. Conviction cannot be based upon instincts.”

Legislator Tian Qiu-Jin continued her interrogation. “What we are here today to debate is a structural problem and a human right issue. Why does the Ministry of Justice reply to the Control Yuan claiming no illegitimate practices and no misconduct occurred during Prosecutor Ho Kuan Ren’s investigation? Since there is no illegitimate practice and misconduct, I assume that the practice of sentencing with instincts and a shadow passing by a suspect’s eyes is legally appropriate, and Prosecutor Ho’s practice is proper. How do you think, Mr. Minister, it is appropriate?”

Legislator Tian Qiu-Jin emphasized “This is a very important case of judicial human rights in Taiwan history. What can an ordinary civilian do if we continue to allow prosecutors to prosecute an organization with tens of thousands of people without lawful reasons? Where are the legal protections for the civilians? We will have no days of peace if prosecutors can convict people of crimes based on shadow passing by their eyes.”

Legislator Lu Xue-Chang’s interrogation followed. “Even though the 10-year period for seeking redress from civil servant’s misconduct is articulated in the Civil Servant Disciplinary Act, it does not mean the civil servant bears no responsibilities at all after 10 years. Prosecutor Ho Kuan Ren’s major eight flaws during his investigation are widely known. However, the Ministry of Justice intentionally drug out the case to more than 10 years to avoid legal recourse. Hasn’t the Ministry of Justice breached its fiduciary responsibilities? Look at the performance record of Prosecutor Ho over the past 10 years. Surprisingly, he was graded “A” every year in the past 10 years. Did he deserve the highest grade of performance given what he has done? The deadline for seeking disciplinary actions on civil servants is in the Civil Servant Disciplinary Act. But there is no mentioning of deadlines in the Civil Servant Performance Act. I think we should impose some disciplinary actions from the Performance Act and I demand Ministry of Justice provide an explanation within a week. It is also the responsibilities of the Ministry of Justice to push forward the Compensation for Unjust Cases Act so that unfit and improper prosecutors will be subject to reprimands and irresponsible prosecutions will be reduced.”

Legislator Lai Kun Cheng, a former lawyer and a graduate of Law at National Taiwan University, interpolated vehemently. “Whether Prosecutor Ho’s handing of the case is against legal procedures has been clearly outlined in the 8 flaws of the report of Control Yuan. Prosecutor Ho called up the press during the investigation. He has made the investigation public and open, which should have been private and confidential. He tried to play the role of a Rambo of justice. When we watched the process of his investigation, our hearts were broken as the principle of private investigation has been violated by the vigilantism of selected prosecutors. I would like to ask Minister. “Has a prosecutor ever been investigated, charged or sentenced on account of violating private investigation requirements?”

Minister Tseng replied, “no, not yet.”

Legislator Lai Kun Cheng continued. “So the law has provisions, but because officers cover up for each other, the law has never been enforced in the judicial system. If our administrative organizations want to realize the protection of human rights, we have to respect the principle of private investigation; otherwise it is akin to sentencing before trial.”

Legislator Qiu Yi stepped up to the podium and asked Minister to discipline the Taiwan High Prosecutors Office. “Prosecutor Ho Kuan Ren’s 8 flaws outlined by the Control Yuan are correctable even before final ruling. For example, Ho Kuan Ren publicly discussed the case under investigation on the second day of searching Tai Ji Men. This is an obvious violation of private investigation. Additionally, he sent notices to city and county governments to ask them to shut off the supply of water and electricity. This act has encroached upon the administrative authority of local government. The prosecutor did not have the authority. Therefore we have to inquire into the role of the Taiwan High Prosecutors Office. The act of covering up for the illegal acts of officers that makes prosecutors feel secure, knowing that they have strong backing.”

On the following day, Legislator Lo Shu-Lei commented again on the Tai Ji Men case in the national forum. She said Ho Kuan Ren was investigated by the Control Yuan for his misconduct. If the Taiwan High Prosecutor Office is willing to turn a blind eye and give up legal recourse, civilians will not have confidence in the rule of law.

It’s damaging to the constitutional system when the Ministry of Justice and Taiwan High Prosecutors Office undermine the oversight function of the Control Yuan.

In the face of a series of interrogations from legislators, Minister Tseng replied repeatedly the Ministry of Justice finds the investigation report of the Taiwan High Prosecutors Office unacceptable and the Ministry will investigate on its own accord to ensure proper disciplinary actions will be taken against Prosecutor Ho if flaws are indeed found. He also stated the case is not yet finished. It is still being investigated. When the three Control Yuan Members, Liao Jian-Nan, Chao Rong-Yao, Li Shen-Yi investigated the case voluntarily, the defendants of Tai Ji Men and representatives persecuted by Prosecutor Ho’s illegal practice submitted 10 written statements. Prosecutor Ho provided written reports in response and answered inquiries from the Control Yuan. At the end of the Control Yuan investigation, the verdict from the 13-member committees of “Judicial and prison administration affairs”, and “Internal and minority nationality affairs” which was composed of Huang Wu-Ci, Gu Deng-Mei, Li Shen-Yi, Chang De-Ming, Huang Chin-Cheng, Xie Ching-Hui, Huang Huang-Xiong, Kang Ning-Xiang, Zhan Yi-Chang, Lu Xi-Mu, Lin Qiu-Shan, Guo Shi-Ji and Ma Yi-Gong outlined the 8 flaws of Prosecutor Ho’s investigation of the Tai Ji Men case. A report was sent to the Ministry of Justice to ascertain the appropriate disciplinary actions that should be taken against Prosecutor Ho Kuan Jen. The report did not ask Ministry of Justice to re-investigate the case, but the Ministry of Justice and Taiwan High Prosecutors Office conducted re-investigations on their own accord and the re-investigation took 8 years to rule that no unlawful or illegal practices took place. The conclusion is an affront to the investigation report of the Control Yuan. Despite harsh criticisms from legislators, Minister Tseng insisted to continue the investigation. The position of the Ministry of Justice is to discredit the oversight function of the Control Yuan and damages the constitutional system of the division of power.

If the judicial system will do nothing to reign in under-qualified staff who exceed their legal authority and continues to cover up the crimes of each other despite obvious evidence, then the investigation held by the Control Yuan will not help. The result is that illegitimate officers are not disciplined, victim’s false charges are not cleared up and justice is not realized. All are supposed to be equal in the court of law. If the judicial system takes advantage of the knowledge gap to cover up for illegitimate prosecutors, it would be impossible to win back civilian’s trust and the respect for the legal system and to eliminate social grievances.

The Tai Ji Men case should not have been filed. But negative public opinions were formed by the case because a prosecutor violated the rule of private investigation and urged the formation of self-help association.

The volunteer attorney for Tai Ji Men, Tsai Ching-Mei, also a dizi of Tai Ji Men for more than 10 years, expressed, “In November of 1996, Kaohsiung and Hsinchu District Prosecutor Offices also received a false claim and conducted secret investigations into Tai Ji Men. After searching the branch academies, interrogating Tai Ji Men’s Zhang-men-ren and after finding no signs of illegal activities and no identifiable victims, the Kaohsiung and Hsinchu District Prosecutor Offices held press conferences and closed the cases on November 30 and December 18, respectively. However, on the following day when Hsinchu District Prosecutor Offices closed the case, Prosecutor Ho responded to the same false report and lead armed police and investigators to search 19 premises of Tai Ji Men branch academies and the houses of several dizi. In violation of the principle of private investigation, he also used the press to urge people to form self-help associations.”

A few hours after the search on December 19, 1996, the news channel reported in the evening news broadcast the searches which were accompanied by the press. Prosecutor Ho claimed that Tai Ji Men was involved in religious fraud. During the time of the news broadcasting, Tai Ji Men’s Zhang-men-ren was still being interrogated. It is obvious that Prosecutor Ho had a pre-determined bias and position and moreover, his conduct is a serious violation of private investigation. From 7:05 pm on December 19, the time when Prosecutor Ho finished his searches to the time when the newspaper published the report, Tai Ji Men’s Zhang-men-ren was still being interrogated at the Investigation Bureau and all recovered evidence from the searches were waiting to be examined. But on the following day, the headline on major media was “Tai Ji Men fraud 3.1 billion”. However, the two bank accounts referenced to in the bill of indictment had balances of only 610,000, a big difference from the fraud claimed by Ho Kuan Ren. The falsely reported amount of 3.1 billion written in the press is clear evidence of the Prosecutor’s releasing information to the press in advance of the arrest.

The remarks made by Prosecutor Ho in Control Yuan investigation, “Due to the large number of victims involved in the Tai Ji Men case, it is not feasible to subpoena every one. Therefore, for the ease of investigation, it is not imprudent or erroneous to adopt the information provided by the self-help association.” is in serious conflict with the truth. Attorney Tsai Ching-Mei said “As a matter of fact, there were no victims in the Tai Ji Men case. The so-called self-help association was formed through Prosecutor Ho’s public advocacy on day 6 after his search before evidence were properly examined. In the court hearing, the judge uncovered many fake names in the list of victims provided by self-help association. As a result, on May 26, 1997, the judge ordered for all “victims” in the case to sign and fingerprint their complaint within 3 weeks to validate the list. However, more than 10 years later, after the case was finally ruled non-guilty, the list has never been provided despite repeated 7 requests from Tai Ji Men’s Zhang-men-ren and 2 requests by the court. Therefore we can only conclude that there were no victims in the case. The second court ruling and the Control Yuan also identified serious flaws in the list of victims. For example, deceased people also appeared on the list. How can a dead person register to the self-help association? It is obvious what Prosecutor Ho claimed is not true. The Tai Ji Men case was an unjust case with no victims. The Control Yuan investigation confirmed contradictions between the bill of indictment and evidence. Prosecutor Ho’s prosecution was in violation of the principle of evidence and the case was a mistake since the beginning.”

llegal detainment, unlawful searches, freezing assets unlawfully, exceeding legal authorities and shut down branch academies without lawful justification.

Lawyer Tsai Ching-Mei said. “Tai Ji Men’s Zhang-men-ren was held in custody immediately. Miss Hong, a housewife, Chen Tiao-Hsin, a Tai Ji Men dizi for many years, and Peng Li-Juan, a schoolteacher, were also detained shortly after. However, Prosecutor Ho did not expeditiously conduct investigations to clarify the truth. Instead, he extended the period of detainment after the first 2 month custody expired. From December 21, 1996, the following day when Zhang-men-ren was taken into custody, to April 16, 1997, when the bill of indictment came out, only 3 investigations were conducted and Zhang-men-ren was asked a mere 13 questions with a total time in interrogation of 29 minutes during 117 days in custody. This is serious infringement of freedom. Furthermore, from the beginning of the investigation to the day the case transferred to the court, Prosecutor Ho never informed Tai Ji Men’s lawyer, Attorney Li. This is a violation of the constitutional rights of a fair trial and the right to defense.”

Lawyer Tsai Ching-Mei continued. “Tai Ji Men dizi Li Cheng-Wen and Wen Xiu-Zhen were interviewed by media on December 20, 1996. During the interview, they explained the benefits of practicing Tai Ji Men Qigong. Without charges from anyone, they were searched and subpoenaed on December 24. This was a deliberate attempt to create a chilling effect, and equates to judicial terrorism. The Control Yuan also believes the justification for the searches were far-fetched and not in compliance with the stipulations of Criminal Investigation Procedure Codes. The search and subpoena was a breach of human rights protection.”

When Prosecutor Ho answered the inquiries from the Control Yuan, he admitted that he was following a suggestion to confiscate all assets held by Tai Ji Men’s Zhang-men-ren and his wife without a detailed investigation into the source of the assets. “After a short 4 days of investigations, Prosecutor Ho confiscated all the assets of Zhang-men-ren and his wife on December 23, 1996. This has seriously violated the basic rights of survival.” said Tsai Ching-Mei.

“What is even more outrageous is the case should have been taken out of Prosecutor Ho’s jurisdiction when the case was transferred to the district court on April 18, 1997. But Prosecutor Ho sent a notice to the Ministry of the Interior on April 25 demanding for Tai Ji Men to be disbanded. He again sent notices to 8 city and county governments ordering them to disband Tai Ji Men. He went even further, asking Taipei City Government and the Public Works Bureau of Taipei County to cut off the supply of water and electricity on June 18. During the Control Yuan’s investigation, Prosecutor Ho admitted that he sent out notices to the Ministry of Justice and city and county governments without obtaining prior approval from his supervisor. How can the High Prosecutor Office find this overstepping not be illegal or inappropriate?”

Damage to the creditability of the judicial system with charges of raising little (demonic) spirits.

Attorney Tsai Ching-Mei commented on Prosecutor Ho’s indictment of raising little (demonic) spirits, saying. “Prosecutor Ho pressed the charges on April 15, 1997. The bill of indictment was published on the 16th and the case should have been transferred on the 17th. But since the charge of raising little spirits ignited a widespread public outcry, Prosecutor Ho, with an intention to divert public attention, searched 4 Tai Ji Men branch academies for evidence and confiscated a peach-wood sword as evidence of raising little spirits. The peach-wood sword was a gift from a Tai Ji Men dizi who was diagnosed with breast cancer and regained health after practicing Tai Ji Men Qigong. It is widely known in Chinese culture that the peach-wood sword is used to expel spirits. Prosecutor Ho first interrogated Tai Ji Men’s Zhang-men-ren on April 17 for raising little spirits. Zhang-men-ren replied “No”. But it did not help at all because the bill of indictment had already been published in the press. This is like drawing the target first and firing the shot later. The act of framing a defendant is a serious violation of procedural justice. The Control Yuan investigation report indicated that “raising little spirits” is against the principle of scientific investigation and evidences. This is the first time in Taiwan history for a prosecutor to file a charge based on such an appalling and unbelievable accusation. His behavior has seriously damaged the credibility of the judicial system.”

It is necessary to weed out unqualified prosecutors to protect judicial human rights.

Prosecutor Ho Kuan Ren was accused of tampering with evidence and mismatching testimonies, and losing the evidential tape recordings in the case of Chou Ren-Shen computer games in 1996. He also threatened witnesses with the threat of detaining and freezing assets. More than 10 police officers that he prosecuted were eventually ruled not guilty. The Control Yuan investigated prosecutor Ho in 2002 and outlined 8 flaws in the investigation of the Tai Ji Men case. In 2003, in the case of a mud disposal scandal in Yunlin County, Prosecutor Ho was again accused of discrepancies between witness statements and his recordings. The court eventually revoked the validity of his evidence. In the case of President Ma’s special budget, he was guilty of untruthful recordings of witness depositions. Such a reckless prosecutor who constantly exceeds his legal authority has ruined many people’s reputations that will endure for the rest of their lives. Many families were broken, judicial resources were wasted and the confrontations between social classes were escalated. It is hard to compensate for lost families, resources and harmony. Even though the 4 defendants in the Tai Ji Men case have been awarded compensation for unjust prosecution, the pain and damage to their reputations is beyond compensation. As Chen Tiao-Hsin said painfully in the press conference of compensation for unjust case, “The government must do something to the unqualified public servants that are running amok in the judicial system”

Weeding out the corrupt and unqualified prosecutors is a necessity if we wish to shore up the judicial system and restore public confidence.