Sun, Mar 02, 2014 - Page 8 News List

Observation alone is not enough to heal courts

By Lin Yu-shun 林裕順

At a forum organized by judicial reform groups on Monday, President Ma Ying-jeou (馬英九) said that observation of trials was the first step toward public participation in trials. Using Japan and South Korea as examples, he said that public participation in trials could increase public confidence in the judiciary and increase the acceptance of verdicts.

However, the Japanese and South Korean systems do not consist only of public attendance at trials, which is what the proposed Taiwanese system would dictate.

Taiwanese would have to watch court proceedings in silence, but the public participates independently in Ma’s two examples — as a jury in South Korea and as lay judges in Japan.

In courts with public participation, citizen representatives are chosen at random to bring together different opinions and experiences to promote value diversification. Without public input, professional judges can do as they please in corruption cases, as in the cases involving former president Chen Shui-bian (陳水扁) and former Cabinet secretary-general Lin Yi-shih (林益世).

By randomly selecting public representatives to participate in trial observations, it becomes possible for Taiwan’s judiciary to manifest what is meant by “clean and capable government” and for the public to warn leaders that they should not appeal to tragedy because that will alienate public opinion.

Furthermore, such a selection process would protect the democratic legitimacy of verdicts.

The present proposal only allows judges and the public to sit in the same courtroom. Without complementary changes to criminal trial legislation that would allow inexperienced people who review trial proceedings to learn the process, these citizen observers would be left groping in the dark without legal knowledge, litigation experience, expert training or the time that professional judges have. Because of this, it is only by changing the Criminal Procedure Act (刑事訴訟法) that court proceedings can become swift, approachable and understandable, allowing public opinion to be reflected in what is deemed right and wrong.

The debate over the legislature’s review of the trial observation system has mainly seen public representatives express their opinions and participate in the decisions about how to divide the powers of professional judges. It has not touched upon judicial or prosecutorial malpractice, or shortcomings in the current system.

Taiwan’s current judicial system facilitates miscarriages of justice, such as the cases of Chiang Kuo-ching (江國慶), who was acquitted of rape and murder after being executed, and Su Chien-ho (蘇建和), who was found not guilty of murder after nearly two decades in the court system.

Without significant complementary changes to criminal procedure, public observations of trial will result in populism and a deteriorating legal system.

A trial observation system initiated from the bottom up will shape fairness and justice, and enabling the public to become the masters will put an end to manipulation of the judiciary by those with influence.

This is why, as the government is faced with dwindling trust in verdicts, a trial system that only allows the public to observe trials is far from sufficient. Changes to the procedure must be considered if the observation system is to have an effect.

Lin Yu-shun is a professor in the criminal investigation department at Central Police University.

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