Recently the Judicial Yuan responded with an unusually harsh tone to criticism from the Ministry of Justice over the slowness of the court system. It has also resisted criticism from legislators with unprecedented solidarity.
This has given people a feeling that judicial independence is in conflict with speedy trials and therefore that the two are mutually exclusive. In the newspapers, we only saw reports about disputes between the Judicial Yuan and other government branches, but nothing about any aggressive government proposal for vitalizing the judiciary. The people's faith in the judiciary has depreciated once again.
Slow trials can be caused by human or systemic factors. If a trial is delayed due to human factors, then the Judicial Yuan can hardly ease public anger by trying to protect lazy judges in the name of judicial independence. If it is due to the system, then Minister of Justice Chen Ding-nan (
The human factors: All judges, prosecutors and lawyers know that some judges like to shelve cases involving ordinary citizens and use tricks to skimp the trial deadlines set by the Judicial Yuan. Only the most "simple" judges who do not know how to play with the law and language are punished by the Judicial Yuan for delays. In practice, trial cases change hands between several judges after indictment. A considerable number of cases are still being passed around in the local courts after several years. This is a case of judges neglecting their jobs and ignoring the people's interests. For what? In the name of "judicial independence?" Existing laws do not cover this sort of dereliction.
Now a look at the systemic factors. The prosecutorial system has massive police and investigative resources at its disposal. When faced with a serious or high-profile case, it can pool five, six or even more prosecutors from the local and Taiwan Council of Grand Justices' prosecutors' offices. In contrast, the court system has no resources whatsoever. The local courts can only set up a trial with the cooperation of three judges at best, no matter how important a case is.
In the past, Taiwan's judicial process included a system of inquisitions, which demanded that the judge do the work of prosecutor, advocate and judge. A lapse in any one of these three roles would constitute a reason for a mistrial or an annulment of a verdict. The judge would then be condemned by the public as an "addled judge." (We've seldom heard the media criticizing prosecutors and lawyers for being "addled"). Frequently during trials, evidence turns out to be weak or the prosecutor does not appear in court. The quality of the lawyers can vary greatly as well. Under demands not to err and playing three roles at the same time, the judge cannot resolve the problems even when he or she works very hard, thus leading to case delays. The courts have limited resources and manpower while the number of cases increases without end. Delays in trials are therefore to be expected. Taiwan has enacted legislation to change its inquisitorial system into a "modified adversarial system." However, with the trial culture remaining unchanged and complementary measures lacking, case delays continue to occur.
The human and systemic factors intertwine and spiral out of control. It is a mistake to emphasize one and ignore the other.
Case delays not only hamper the prosecutor who filed the indictment, but also affect the defendant's rights. Indictment by a prosecutor often means the termination of a defendant's career, suspension from a job, or obstacles to promotion. Even if they manage to keep their jobs, defendants will become a subject of rumor and inuendo among colleagues and neighbors, thereby getting mired in undue long-term agony.
To avoid prononging this horrid experience (especially among innocents), the Magna Carta of England stipulated that defendants have a right to speedy trials. Today, both the UN Covenant on Civil and Political Rights and the European Convention on Human Rights have similar provisions.
The US Constitution also stipulates that a criminal defendant has the right to a speedy trial, but there has been no conclusive view on how speedy a trial should be so as not to harm the interests of the defendant and society.
In 1972, the US Supreme Court announced relatively clear methods for conducting speedy trials. The law does not simply seek speed at the expense of truth and human-rights guarantees. It contains many exceptions which clearly stipulate under what specific circumstances the judge may prolong a trial period in accordance with their authority or at the request of the parties involved.
However, cases that do not meet the conditions defined by the law must be completed before the deadlines. When a judge violates the rules and delays a lawsuit, the law also stipulates different penalties for different circumstances. For example, case delays resulting from procedural manipulations by a prosecutor or an advocate may lead to the confiscation of a maximum one-fourth of the attorney's fee, or a fine on the prosecutor.
Because that law drastically changed the actual practice of court trials, Congress set a five-year "sunrise clause" (which means many of the law's provisions would go into effect five years afterwards) so as to allow the courts to make adjustments. During that period, the courts could also propose amendments to Congress and revise provisions that were difficult to practice. After the federal government enacted the law, all the US states followed suit and now almost all the states have similar laws designed to control the speed of trials. Case delays still occur occasionally in the US, but everything is scrutinized in broad daylight and whatever caused the delays -- be they human carelessnes or wrenches in the system -- become clear.
I support judicial independence, but I am also against the authorities concerned doing nothing about case delays. The idea that the courts should coordinate with the Ministry of Justice and speedily conclude trials is beyond my comprehension, but I agree that the gravity of case delays should not be ignored. I sincerely request legislators not humiliate government officials with their words, but instead quickly enact legislation to seek a fundamental solution.
Wang Jaw-perng is an associate professor of law at National Taiwan University.
Translated by Francis Huang
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