Wed, Apr 05, 2017 page8

• Rectifying the Jurassic judiciary

  • By Jerry Cheng 鄭文龍
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  The judicial reform show directed by Judicial Yuan President Hsu Tzong-li (許宗力) is peppered with exciting twists and turns. One twist came when the preparatory committee for a National Congress on Judicial Reform resolved that the Council of Grand Justices should hear German-style constitutional complaints (verfassungsbeschwerde), thus turning the Grand Justices into a court of the fourth instance.

  This judicial resolution is worrying. The function of the judiciary is to provide fair trials, and for a trial to be fair it needs to be scientific, humane and trustworthy. One essential condition for a fair judiciary is to have speedy trials, because justice delayed is justice denied.

  The main problem with the judiciary is not that it lacks fourth-instance courts, but that it suffers from four judicial maladies: judicial corruption, “dinosaur” judgements, interference in trials and trial in the court of public opinion.

  However, up to now the preparatory committee has not seriously tackled these issues.

  Another problem is that the five highest judicial organs — the Judicial Yuan, the Supreme Court, the Supreme Administrative Court, the Public Functionary Disciplinary Sanction Commission and the Council of Grand Justices — and their personnel — have not been merged into a single supreme court such as exists in the UK, the US and other advanced nations.

  Only by integrating these diverse supreme-trial institutions and merging their staff can the state’s limited resources be used sparingly while achieving the aim of speedy, effective and consistent trials, and genuinely safeguarding human rights. It would also resolve constitutional conflicts between the different state departments.

  Unfortunately, the preparatory committee has steered clear of this important issue, instead taking a wrong turn in the direction of a fourth-instance court.

  It is much more important to improve the first-instance trial system than to establish a court of the fourth instance. First-instance trials take place relatively soon after the events of a case, making it easier to collect evidence and while witnesses’ memories are still fresh, so in theory a first-instance trial has the greatest possibility of getting close to the truth.

  However, Taiwan’s first-instance trial system is riddled with problems, such as excessively young judges, trial by record, secretive trials and trials that are drawn-out and postponed. Resolving these defects will require reforms at the first-instance stage.

  Notably, adopting juries and an adversarial system would make first-instance trials fair and help them arrive at correct verdicts, thus making it less likely that cases will go to the second and third instances and be passed back and forth interminably between them.

  For the vast majority of people who have won cases, the introduction of a fourth instance could only mean that their cases remain unresolved, while it would offer a tiny minority of those who have lost a case the hope of an appeal, but most of them would not succeed.

  The preparatory committee has also resolved that lecturers from colleges of law should serve as part-time judges who would be paid on a case-by-case basis. For outside observers, this is another stupefying decision. The judiciary is always being accused of making “dinosaur” judgements, but instead of getting to the root of the problem by adopting a jury system or selecting judges from among highly experienced and outstanding lawyers, the preparatory committee instead wants to get academics to act as part-time judges.

  This is not the right way to get rid of “dinosaur” judgements. It would merely have two species of dinosaurs instead of one, which would turn the Judicial Yuan into Jurassic Park.

  Of course judges should be selected in a diverse manner. For example, the jury system employed in the US, the UK and other countries is one way to complement judges and cure the four judicial maladies.

  Apart from juries, the US also has a system of elected judges, while the UK has a system of volunteer judges called magistrates. Taiwan could appoint a large number of magistrates — perhaps 20,000 to 30,000 — thus allowing socially experienced people to serve as temporary judges for three-month stints to judge the 90 percent of criminal cases that involve penalties not exceeding one year’s imprisonment.

  What Taiwan definitely should not do is enlist law college lecturers to act as judges when they are just as socially inexperienced as the judges the nation already has.

  Taiwan’s judicial reforms should refer more to the mature and robust litigation systems of nations like the US and the UK.

  The government should not lock itself away and cook up some peculiar system of its own, nor should it copy Japan’s lay judge system or Germany’s constitutional complaint system, which are poor substitutes that were adopted experimentally in the post-World War II years.

  Jerry Cheng is a lawyer and founding chairman of the Taiwan Jury Association.

  Translated by Julian Clegg
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