Several weeks ago the Judicial Weekly (司法周刊), Taiwan's semi-official law newspaper, ran a front-page piece on the Judicial Yuan's draft bill to solve the indigent criminal defense problem. The Judicial Yuan's interest in this issue is certainly welcome. Justice in any nation should be available to all; rich and poor. I have, however, some concerns about their choice of the Japan-ese indigent defense system as a model.
I think this is a fundamental mistake because Japan's criminal justice system, like Taiwan's, suffers from what might be termed "cognitive dissonance." Cognitive dissonance is a psychological conflict resulting from incongruous beliefs held simultaneously. Or to put it more simply, it is when you hold two beliefs that don't match up and you nevertheless try to function.
Both the Japanese and Taiwanese systems suffer from cognitive dissonance in that they claim to be based on one model when in fact they function according to a completely different and irreconcilable model. In both cases it is like fake wood; you have a thin veneer that looks like some expensive hardwood that covers pressed sawdust in the core.
In Japan's case the surface veneer is the US adversarial system. After World War II the US occupation forces decided that it would be a good thing for Japan to have the US system of criminal justice, so the US system was put into place. But this veneer did not change the core, the day-to-day practices, of the Japanese system. It remained what it was from before the war, a German-based system modified to local taste. This cognitive dissonance between the theoretical basis and the day-to-day functional reality makes the Japanese system a poor choice as a model.
The same type of cognitive dissonance is found in Taiwan. I recently had what Zen practitioners would call a "satori," a sudden enlightenment, on the real nature of Taiwan's system. For years I had parroted the standard line that the criminal justice system was German-based. It is not. In its core, its essence, the system is imperial Chinese. Its fundamental approach is not the "scientific jurisprudence" and rational structure which marks the core of the German system. It is imperial Chinese with a thin veneer of German structure, on top of which has recently been added an even thinner veneer of the US adversarial system.
What marks Taiwan's system as imperial Chinese? Several fundamental things do. To put it bluntly, today's judges oftentimes run around acting like latter-day mandarins who served as imperial judges. Like the mandarins, the judges have a lifetime job. They got their jobs not based on experience but on their ability to parrot answers on the state-sponsored test. As a group they have little or no "life experience." Most of them have never worked, never stepped out of school, bushibans or the courthouse. Like the mandarins they have no public account-
ability, they consider themselves above all public scrutiny and review. Judges, like the manda-rins, are basically impossible to remove from their positions no matter what they do or don't do.
The system reflects its imperial basis in other ways too. Like the mandarins, the judges have a fetish for confessions. The reason for this is not hard to discern; if there is a confession then the judge does not have to ponder the case much and is able to protect himself from criticism by simply saying, "Oh, the defendant confessed."
Confessions are a boon to lazy and cowardly judges. Judges in imperial China and in "modern" Taiwan share this love of confessions. They also are more than willing to turn a blind eye towards how the confessions were obtained or how much sense they make or don't make.
Judicial torture was common in the imperial system. That grand tradition has also been carried on. The only difference is that the cops now take care of it before bringing the defendant into the courtroom. I would presume this is a bow to judicial time management.
Imperial judges had both an ignorance of and an aversion to science; the fictional Judge Bao (包青天) to the contrary. This is another tradition that lives on. Related to that is the disregard for logic shown by Taiwanese judges, both imperial and modern.
Held in equal disregard are human rights and civil liberties. For the imperial mandarin judge social order and not losing face were the two top priorities. In fact the only priorities. The same can be said for today's judges. As an obvious result, human rights and civil liberties fall quickly by the wayside.
When you combine these factors together with the fact that the judge still plays the central role in the criminal justice system then it becomes apparent that Taiwan's system is fundamentally imperial Chinese. The mentality, the core, the essence is unchanged from the Ching dynasty. What you see is simply a changing of procedures; a change in veneer. One also sees the cognitive dissonance of the situation. Psychologists say that individuals who suffer from high levels of cognitive dissonance eventually suffer some sort of breakdown. What is true for individuals may well be true for criminal justice system.
Brian Kennedy is an attorney who writes and teaches on criminal justice and human rights issues.
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