It has been 21 years since the nation’s first direct presidential election in 1996 and almost every president has focused on judicial reform.
In 1999, the government held a three-day national judicial reform conference and this year the Presidential Office held a three-month National Congress on Judicial Reform. Despite the attendance and participation of academics and experts at these events, the public perception is that judicial reform is moving at a snail’s pace.
Judicial reform is a combined effort, involving considerable cross-ministry communication: It is a significant undertaking that cannot be accomplished by the president, the Ministry of Justice or the Judicial Yuan in isolation.
For example, Article 388 of the Code of Criminal Procedure (刑事訴訟法) causes much controversy by stating that Article 31 of the code — which specifies that “the presiding judge shall appoint a public defender or a lawyer to defend the accused if no defense attorney has been retained” — does not apply to a trial of the third instance.
The Judicial Yuan proposed an amendment to Article 388 to the Legislative Yuan five years ago, but it has yet to be amended. With the legislature moving so slowly, no wonder judicial reform is also moving slowly.
So who is responsible for the delay? Perhaps the public who voted for the legislators.
The National Congress on Judicial Reform has decided upon adopting a “citizen judge system,” proposing that six ordinary citizens sit alongside three professional judges, with rulings based on a majority decision. Different from the US and British jury systems, or the German lay judge system, the proposed system is closer to that of Japan.
Whether the proposed system would pass internal discussion or the Legislative Yuan is unknown and no one, including the legislature, knows what the system would look like if it is passed.
At the 1999 conference it was proposed that the nation move toward a citizen participation system, and the Judicial Yuan invited a group of academics and experts to discuss the issue for more than five years and then proposed a draft expert participation in trial act.
However, when the Judicial Yuan was about to submit it to the Legislative Yuan, some questioned whether Articles 80 and 81 of the Constitution would have to be amended to allow experts to serve as judges and argued that it was inappropriate for experts who were originally examiners or witnesses to serve as judges. The draft, over which so much time and money had been expended, was summarily discarded.
The scope of expert participation in the draft was comprehensive, including for cases involving construction, medicare, computing, shipping damages, sexual assault and labor rights, in which expert participation was required. It was a shame the draft was aborted.
Similarly, the legislature could repeat the past mistake and abort the proposed citizen judge system if it also believes that it would involve constitutional amendments. This is the problem facing judicial reform. Once the meeting is over and media attention has moved on to the next issue, who will be checking the process and communicating with the legislature?
Some lawmakers have already said they would not accept the entire proposal without questioning it.
Hopefully, the government will learn from past mistakes, otherwise judicial reform will continue to tread water while the reins of power are handed from one party to the next.
The Presidential Office should establish a judicial reform committee to coordinate a variety of judicial reform affairs, including changing the court system, subjects to be tested in exams for judges, the legal and constitutional amendments the Legislative Yuan would be responsible for, legal knowledge promoted by the Executive Yuan, the strengthening of legal negotiations conducted by district offices and law instruction in universities.
Above all, the legislature should amend the law to give the committee legal authority, so it does not become a laughing stock by pushing for judicial reform as an unofficial agency.
Chuang Sheng-rong is a lawyer.
Translated by Eddy Chang
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