Top guns debate judicial reform - Tsai Pi-yu

Taipei Times: Why has the Ministry of Justice resisted the proposed revisions to the Code of Criminal Procedure?

Tsai Pi-yu (蔡碧玉): The issue has been unnecessarily turned into an ideological conflict about whether the country should move away from the current inquisitive system to an adversarial system to try to strengthen the judiciary. I know that people have frowned on the judiciary, but I doubt the root cause of this disapproval lies in the fact that we don't have an adversarial system.

If we approach the matter from an ideological perspective, we can't have a truly meaningful discussion. But from the beginning, the Judicial Yuan has portrayed itself as a reform-minded proponent of the adversarial system and the Ministry of Justice as a rigid defender of the status quo. I agree to the proposal that limits the role judges play in investigating evidence so they can be more objective arbiters in trials and for the prosecutor to shoulder the burden of proof. But I doubt that the two proposed revisions to the criminal procedure rules could do much to attain that goal.

Take the planned revision to Article 163 as an example. It states that the judge "may," rather than "should," as the present rule stipulates, investigate evidence upon his discretion, but in situations where it is needed, his investigation is mandatory to maintain fairness and justice. This means the judge can still go ahead and act as a prosecutor if he sees fit. Zealous judges will continue involving themselves deeply in the investigation while their hands-off colleagues restrict themselves to the bench. Such reform would do little to separate the duties between the judge and the prosecutor or reverse the public's distrust of judges.

That's why we have said judges should completely relinquish their right to investigate if they want to remain neutral in court. Knowing the Judicial Yuan would refuse to do so, we have asked it to mark out the boundaries of judges' investigations. Again, the Judicial Yuan refuses to cooperate, saying it prefers to have the matter settled by custom. That's no answer at all, as it usually takes a long time for a custom to develop.

TT: How do you respond to charges that some zealous prosecutors tend to abuse their power, as evidenced by the rather high number of acquittals?

Tsai: Certainly there is ample room for domestic prosecutors to improve their performance. But I reject the contention that the number of not-guilty verdicts is indicative of power abuse by prosecutors.

In Japan, the not-guilty rate is less than 1 percent, meaning that once indicted, the defendant can expect to be convicted. While I admire the effectiveness of Japanese prosecutors, I question the necessity of the ensuing trials. In the US, about 20 percent of the defendants are absolved by the court each year. In Germany, the figure is 15 percent. Based on the statistics, can we say their prosecutors are worse than ours? [Taiwan's acquittal rate is roughly 12 percent]. I would not make such a hasty conclusion.

In any event, the planned revision to Article 161 is said to address the problem. The proposal states that the prosecutor should take responsibility for proving the defendant guilty and explain how he arrived at that conclusion. It would give the judge the power to dismiss cases where the prosecutor fails to produce sufficient evidence. But it is my belief that if the judge finds the defendant innocent, he should acquit him rather than dismiss the case. The latter approach may not really help the defendant clear his name, but it would deny him the right to seek compensation for being unfairly investigated.