Sun, Jun 19, 2011 page8

• Judicial reforms concern everyone

  • By Jerome Keating
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  Taiwan still carries a lot of baggage from its past one-party state days under the Chinese Nationalist Party (KMT). One particularly large piece of that baggage has been the nation’s need for judicial reform. This need had been long evident, but it could only begin to be met after martial law was lifted in 1987.

  Nonetheless, efforts to address this issue with appropriate legislation had long proven futile. Finally, however, in the latest legislative session, a bill called the Judges’ Act (法官法) was passed. What has spurred on this change? There have been several forces at work; one has certainly been and continues to be public awareness of the problem.

  The tipping point seems to have been public awareness of abuses in two high-profile murder cases coming at the same time. The first case is one that had been around for a long time, that of the Hsichih Trio (a murder case with many twists and turns dating back to 1991). The second is the recent developments in the wrongful execution of Chiang Kuo-ching (江國慶) in 1997 for a rape and murder case involving a young girl in 1996.

  In both cases, among the many flaws and discrepancies in the courts’ guilty verdicts has been that the confessions of all suspects involved were extracted through torture. In the Chiang case, however, an unforeseen break was that another person, Hsu Jung-chou (許榮洲), recently admitted to the crime. With this, the courts and the Judicial Yuan, which had trouble sweeping both cases under the rug at the same time, found a way out.

  Recognizing and throwing out confessions that have been illegally achieved through torture and other means is one of the many issues addressed in the Judges’ Act, along with a system that will evaluate judges and remove incompetent ones.

  What helped the legislation? Traditionally, Taiwan’s court system has had the unfortunate perception that one is guilty until proven innocent, even if confessions are achieved by torture. In the case of Chiang, it was easy for prosecutors and the courts to admit mistakes in the trial because they had another person, Hsu, who admitted to the murder. In the case of the Hsichih Trio, it is harder for the courts to admit errors and to let the three go because they do not have any guilty parties to replace the suspects with.

  However, public awareness has been only half the battle. Steadily working for changes in the system has been the Judicial Reform Foundation, which has been tirelessly at work since 1995. Foundation director Lin Feng-jeng (林峰正) spelled out the issues in this way: Taiwan has a legal system similar to the continental legal system of Europe, and so career judges have had too much power and protection from the Constitution.

  Coming out of a one-party state history, Taiwan’s system has been rife with corruption, the interference of politics in court cases — a natural result of a one-party state — and judges who lack the necessary experience and background for making critical judgements. The KMT--dominated Legislative Yuan has had little motivation to change the system because of the one-party state days, while the Democratic Progressive Party (DPP) has lacked the power to change it.

  In the past, one could qualify to be a judge simply by graduating from law school and passing an exam. The new legislation proposes that judges be qualified by a stricter examination system, as in Europe, and that they should preferably be chosen from experienced lawyers. The legislation also proposes the establishment of an independent commission to get rid of poorly performing judges, but here it breaks down from what the Judicial Reform Foundation recommended. The foundation had wanted civilians to also be appointed to the commission, but the current bill has maintained that only judges will pass judgment on their own.

  Lin feels here that opposition from the Legislative Yuan in the past has been because too few legislators have actually been lawyers and therefore they do not realize the impact judges have on the court system.

  The Judges’ Act has been passed, but the public cannot rest there. Next should be a “Prosecutors’ Act.” Taiwan also needs legislation to guard against abuses of power by prosecutors. For example, at present, prosecutors have too much leeway in applying the Rule of Procedures regarding what evidence can be allowed. Similarly, prosecutors can allow wire-tapping and command a search of a person’s home or office simply on their own discretion. In these areas, as well as pre-trial detention, too much is left up to the prosecutor.

  These reforms and future efforts are matters of necessity. Taiwan’s democracy is young and the protection of individual rights is still a work in progress. As for the public, unless they are personally affected by a case, most citizens continue to remain unaware of the reforms needed in the courts.

  Jerome Keating is a writer based in Taipei.
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