During a Constitutional Court session last month assessing the constitutionality of the death penalty, one grand justice told a Ministry of Justice official that a trial cannot be influenced by public opinion — in other words, a ruling should remain free from public whim.
I have found that views on the matter vary greatly based on a person’s educational background. Those who have received a formal law education in Germany believe that sentencing should be formed independently, both from those in power and the public.
By contrast, those trained in law in the US think that sentencing is inseparable from public opinion, and that all three powers — the executive, legislative and judicial — should yield to the public’s will.
To that effect, it is clear why the amicus curiae (“friend of the court”) system, in which a non-litigating party is able to advise on a matter before the court, was able to flourish in the US, but not in Germany.
The US Supreme Court is especially sensitive to public sentiment regarding probative value — meaning the weight of evidence in court. For instance, when crime rates in the US remained low in the early 1950s to 1960s, the public tended to value the protection of human rights, prompting thorough and stringent assessments of the probative value by the Supreme Court. However, as crime rates started to rise from the 1970s, priorities shifted and security became the public’s top concern. In response, the US Supreme Court relaxed its interpretation of probative value to address the public’s concerns.
The US jury system was born out of democratic ideals, and bases itself on public opinion to determine the fate of defendants. However, it is important to note that judges have the power to overturn a jury’s guilty verdict if the evidence in court points to the defendant’s innocence.
At the turn of the 20th century, Germany tried to emulate the US jury system, but it did so in vain. The German judicial system could not bring itself to give complete power of sentencing to the jury, leaving it under the jurisdiction of professional judges. Germany then switched to a system involving schoffen — lay judges — in which professional judges consult with citizens to carry out sentencing.
In truth, the system of lay judges does not stem from democratic thought. Rather it resembles a dictatorship cloaked in a democratic guise.
A colleague at Tokyo University developed the saiban-in system in Japan, drawing from Germany’s lay judge model. Taiwan subsequently incorporated the Japanese model to form its own system of “citizen judges” (lay judges), which, much like its German and Japanese counterparts, bears little connection to democratic principles.
This shows that democracy in the US is more comprehensive, with public opinion influencing the trias politica — the executive, legislative and judicial — the holy trinity of government. In contrast, Germany’s judiciary remains insulated from public influence. Whether Taiwan will follow in the footsteps of Germany or the US, I leave that to the reader’s better judgement.
Huan Tong-shong is a former president of National Chung Hsing University.
Translated by Gabrielle Killick
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