For the first time since the Legislative Yuan passed the new Constitutional Court Procedure Act (憲法訴訟法) in 2019, the Judicial Yuan on Oct. 24 heard a case involving a death penalty inmate.
The new law replaced the constitutional interpretation procedure act. Previously, the Constitutional Court placed a focus on whether a law or regulation was unconstitutional. Both the law and the judgement will be examined with the new system.
Fifteen grand justices form the new system’s Constitutional Court. After the court issues a ruling, a review can be submitted to the Constitutional Court.
The grand justices can decide to hold a hearing that can either be open to the public or not. In the past, the Council of Grand Justices deliberated only in private and released their interpretations later.
The Legislative Yuan’s change of procedures comes as an attempt to create greater transparency between the Judicial Yuan and the public, and to improve Taiwan’s constitutional review system.
Under the sunset provision, final decisions of prior cases believed to be unconstitutional had until July 4 to bring forth their request for review.
As a result, 38 cases were compiled by death row inmates all sharing a similar claim.
Currently, after a defendant receives a death sentence by a district court, they can appeal this decision to the High Court. If the High Court upholds the district court’s decision, the defendant can bring the case to the Supreme Court. The Supreme Court will either accept the ruling of the high court or will send the case back to the High Court for review.
When the Supreme Court sends the case back to the High Court, it must review its decision and consider issuing a new decision in light of the assessment. Cases before a High Court are heard and decided by a panel of three judges.
Currently, High Court judges from the first appeal are not barred from being assigned to the succeeding appeals.
The constitutionality of reappointing judges to a case has not been clearly determined in criminal cases. Past interpretations have focused primarily on civil and property law. Constitutional Interpretation No. 178 agreed that the judge, who has participated in the decision at a previous trial, shall not handle the case by voluntary recusal.
Interpretation Nos. 259 and 761 stated the same principle on civil and intellectual property cases respectively.
Taiwanese law prescribes principles aiming to avoid bias to guarantee the fairness of a trial.
On Oct. 24, the Constitutional Court deliberated over the concern of reappointing judges. The court chose only Huang Chun-chi’s (黃春棋) death penalty appeal out of the 38 death penalty cases that applied, along with a corruption case and an innocence case to represent the entirety of multiple claims.
If the Supreme Court sends a case back to the High Court, it is a statement to the High Court that there is a mistake that should be reviewed. When the high court reviews a returned case with the same judges, confirmation bias or tunnel vision might occur.
Although judges are sometimes perceived as impartial and rational, research suggests that their ability to see a case from a new perspective after they have made a decision is limited. US law professor Chris Guthrie studied the cognitive illusion of 167 federal magistrate judges in the US and found that they all showed the same level of anchor effect, hindsight bias and egocentric bias as average people.
Claimants argue that their right for their case to be reviewed has been prevented because the same judges are reviewing initial decisions they made. They have asked the courts to reassess this practice to allow for fairer due process.
Currently, the courts have no clear stance, as the grand justices need more time to deliberate. The hearing suggests there exists a mixed position on the matter.
Supreme Court justice Wu Chiu-hung (吳秋宏) presented financial concerns, stating that appointing a judge who has not yet ruled on the matter would require more money, as there are not enough judges. Justice Jan Sheng-lin (詹森林) brought key statistics to the matter, stating that it would take 30 appeals before all judges have been expended in one case.
Wu also mentioned that the use of past judges allows for a speedier trial. In the same statement, the justice mentioned that there has been no research or data to support this claim.
What is next?
Amici curiae, or relevant parties, will submit their written opinions by Nov. 20. If there is a need for greater discussion, the justices will call for an oral argument before making their decisions.
The Taiwan Alliance to End the Death Penalty submitted a brief to the Constitutional Court. According to the US Supreme Court’s “death is different” jurisprudence, the death penalty is “qualitatively different” from all other punishments, so there should be more robust safeguards to examine such cases.
Questions have risen about the true transparency of the new act. Those who have brought forward their case were not notified directly of the hearing. Rather, their lawyers were given notice and were left to relay the news. Other hearings have been heard since this new act was passed, but have been left for half a year waiting to hear their results.
If the court finds the reappointment of past judges on an appealed case to be unconstitutional, death row inmates who have exhausted all appeals will be given another chance to have their case reviewed in court.
Maria Wilkinson is an English correspondent for the Taiwan Alliance to End the Death Penalty.
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