"You can't have your cake and eat it too." The proverb is old but it certainly applies to many modern situations including the latest lurch "forward" in criminal justice reform in Taiwan.
I refer to the two amendments to the Code of Criminal Procedure that have passed their first reading in the Legislative Yuan's Judiciary Committee ("Bill seeks to redefine role of judges in investigations," Oct 30, page 2). If the amendments do become law they will mark a major step toward moving to what the Judicial Yuan fancies calling a "modified adversarial system." The problem with these amendments is that they are a case of the Judicial Yuan trying to "have its cake and eat it too."
What the Judicial Yuan is doing is creating a situation in which trial judges have unlimited authority over investigations with zero responsibility for investigations -- which is not a good situation. That is particularly true where judges are not held accountable by a voting public, where they have lifetime tenure and where the chance of impeachment, no matter what the malfeasance, is practically nil.
The first article being amended is Article 161. The new version will read, according to the Government Information Office's translation, "The prosecutor shall be responsible for collecting evidence against the accused and showing how he or she intends to prove the defendant's guilt. If the court, prior to the opening of court proceedings to try the case, believes that the prosecutor has no chance of proving guilt, the court must set a deadline for the gathering of additional evidence, or must inform the prosecutor that the court rejects the case. If the prosecutor fails to meet the deadline for the gathering of additional evidence, or withdraws from prosecution of the case, the court may reject the case. Once a case has been rejected, it may not be brought forward again for prosecution."
Stripped of its legalese what this means is that the prosecution must do the investigation. If the trial judge is not satisfied with the evidence produced by the prosecution, the judge can set an arbitrary time limit in which the prosecution must come up with more evidence or face dismissal of the case. This section represents the misunderstanding, on the part of someone at the Judicial Yuan, of a preliminary hearing in the US. As is the Judicial Yuan's standard approach, they have lifted something from the US system, something that they barely understood, and dropped it into the Taiwanese system where it has basically no chance of working.
I am not against the US system, nor am I against criminal justice reform. I am against ill-conceived plans for criminal justice reform; which is what the amendments amount to.
Turning to the second article, Article 163, the translation reads: "The parties involved in a criminal case ? shall be entitled to ask for an investigation of the evidence, and shall be further entitled during the investigation of the evidence to question witnesses, forensic experts or the defendant(s). These activities shall not be prohibited except in cases where the chief justice of the court has ruled it inappropriate. In order to discover the truth, the court may decide upon its own discretion to investigate evidence, but investigation of the evidence by the court shall be mandatory with regard to issues that have a bearing on fairness and justice, or with regard to issues that are important to the interests of the defendant. Before commencing any investigation made necessary by the previously mentioned factors, the court must give the parties to the case a chance to present their views to the court."
What this means is that the court can do whatever it wants, whenever it wants. Article 161 is a mutant version of the US adversarial system where the judge plays referee but does not have the duty to investigate or prosecute the case. The trial judge pushes the responsibility for prosecuting the case on to the prosecutors.
Article 163 reflects the core idea of the inquisitorial system, in which the judge runs the trial, including the investigation, witness questioning and the way the case is presented. The two amendments allow the judge to do as much or as little as he or she sees fit and on his or her whim. It allows the trial judge to run the show and to pass the buck when he or she pleases.
That is not judicial reform. It is a mutant that we must hope will be stillborn.
Brian Kennedy is an attorney who writes and teaches on criminal justice and human rights issues.
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