Constitutional Interpretation No. 665 of the Council of Grand Justices deals with the decision to replace the judges handling the corruption cases against former president Chen Shui-bian (陳水扁) and some of his family members and associates when they were already underway. It also deals with the question of whether the Taipei District Court’s guidelines for assigning criminal cases, on which the decision was based, are in line with the Constitution.
Two of the grand justices found these to be unconstitutional, and one said that they should be reviewed, but the other grand justices found them to be constitutional. This is a most regrettable decision that obscures a number of ethical issues.
First of all, the decision to replace the judges handling the Chen case was made after the collegiate panel presided over by Judge Chou Chan-chun (周占春) had twice ruled that the defendants could be released from detention. It was not an ordinary and straightforward matter of related cases needing to be merged. The grand justices failed to address the issues concerning the timing of the switch and its infringement of the defendants’ right to a fair trial.
This failure may be partly because of their institutional constraints in having only abstract reviewing powers over laws and regulations, but not over individual cases and related facts. Such institutional constraints, however, should not be an excuse for their having completely ignored key facts, particularly regarding the timing of the substitution of the judge in Chen’s case.
The majority opinion among the grand justices was that switching judges in criminal cases is a straightforward matter of trial management and has no influence on the rights of the accused to a fair trial. That may be true, but does it mean that all connected cases, no matter how far the parties to the case have gone through the process of accusation and defense, can be abruptly reassigned according to the available judicial resources — for example, because a judge retires, resigns or falls ill?
Can the procedural guarantees that the accused is supposed to enjoy be ignored entirely? What about the accused’s confidence in the fairness of the process, and the time, effort and money they have spent on presenting their case?
Before 1966, the US Federal Rules of Criminal Procedure, to ensure the procedural rights of the accused, did not allow judges to be replaced at all during the course of criminal cases.
This rule originated from judgments made by several circuit appeals courts in the early 20th century. It was later realized, however, that if this ruling was strictly followed, even when judges fell ill or died, or in other circumstances where a judge really had to be replaced, it would hamper the conduct of the trial and violate the procedural rights of the accused.
Only in 1966 was the regulation revised to allow judges to be replaced in mid-trial under certain circumstances, but this is on condition that the procedural rights of the accused are protected.
The timing of the switch, the impartiality of the judges, their familiarity with the case and other factors must be taken into consideration. There have been plenty of cases at both federal and state levels of litigation in which the accused objected to judges being replaced during the course of a trial.
RSS