Tue, Oct 27, 2009 page8

• Protection needed to dispel legal questions

  • By Carol Lin 林志潔
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  The Council of Grand Justices released Constitutional Interpretation no. 665 on Oct. 16. Most of the justices agreed that combining former president Chen Shui-bian’s (陳水扁) cases and his long-term detention were constitutional. However, six of the justices voiced partly or wholly differing opinions. The biggest controversy was whether the Taipei District Court’s change of judges in Chen’s trial after the combining of the cases violated the principle of legally competent judges.

  Some justices believe the court’s case assignment guidelines are based on the principle of judicial autonomy. Since only the judge in a given case has the authority to reassign it by applying to have it combined with a related case presided over by another judge, neither the court president nor the chief judge can arbitrarily interfere with case assignment. Compared with Article 6 of the Code of Criminal Procedure (刑事訴訟法) regarding the combination of related cases that are subject to the jurisdiction of several courts, these guidelines put more emphasis on judicial autonomy.

  Other justices believed such internal court guidelines treat case combination and the changing of judges as internal affairs, thus violating the principle of legal reservation. This lacks fairness, justice and transparency, violating guarantees of the public’s litigation rights. They are therefore unconstitutional.

  A verdict is credible because a trial is fair. Because of this credibility, the public are willing to accept verdicts and therefore obey the law. Fairness is therefore fundamental. The Constitution stipulates the autonomy of judges and protects their status in the hope that they will reject external interference to make fair and conscientious rulings. The Constitution gives the public litigation rights and guarantees the right to a fair trial.

  Although the principle of legally competent judges is not explicitly stated in Taiwanese legislation, the concept of “legal jurisdiction” in Article 5 of the Code of Criminal Procedure states that “a court of the place where an offence is committed or where an accused is domiciled, located, or resides shall have jurisdiction.”

  This is designed to avoid possible manipulation of case assignment. Also, the concept of “jurisdiction transfer” in Article 10 of the code states that an immediately superior court shall transfer a case to another court when an unfair trial is likely to occur. Such efforts are made for the sake of fairness. I believe the legally competent judge principle is not the core of the problem because it is merely one of the measures for a fair trial.

  Do the Taipei District Court’s guidelines really violate the fair trial principle? Most justices believe they do not. Still, fairness is emotional rather than formal.

  If procedures are not transparent enough, the public may feel manipulation has occurred or that the verdict is unfair, thus damaging the judiciary’s credibility, as well as the court’s role as an institution for fair trials.

  I agree that the court must draw up guidelines for internal duty assignment but it is unfortunate that mainstream opinion rarely takes in the viewpoint of those involved in a case, especially that of an accused.

  District courts have their own guidelines for case assignment but assignment and case combination are inconsistent. The only agreement is that an accused cannot express an opinion on case combination. However, the accused bear the consequences so they must be informed about case combination prior to the fact, be given the chance to express their opinions during the process and the opportunity to express dissent afterward.

  Such procedural protection will dispel public doubts.

  Carol Lin is an assistant professor in the Graduate Institute of Technology Law at National Chiao Tung University.

  TRANSLATED BY EDDY CHANG
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