VOTE 2016: Tsai Ing-wen’s Judicial Reform Platform

Despite some corrections to the post-authoritarian judicial system, the personnel structure of the judiciary has been sealed off, conservative, and rigid. This needs to change
Photo: J. Michael Cole / Thinking Taiwan
Photo: J. Michael Cole / Thinking Taiwan
Tsai Ing-wen
By

I. Diagnosis and Analysis

Although Taiwan’s democracy has made great strides since the institution of direct presidential elections and elections for every seat in the legislature, administration of transitional justice has been incomplete. As a result, the nation’s judicial system, whose members have a duty to restrain state authority and protect citizens’ rights and interests, has so far been unable to escape the shadow of authoritarianism.

In 1999, figures from throughout the legal world, including judges, prosecutors, defenders, and academics, held a national conference on judicial reform. Although they reached a consensus on many items regarding the direction of judicial reform, such as the institutionalization of Judicial Yuan trials, in 2011 more than half of these items were overturned by a Judicial Yuan committee that evaluated the effects of reforms. The Judicial Yuan then even created its own “jury system” (觀審制, under which the jury could advise the judge but would have no power to decide the verdict), making true judicial reform more distant than ever.

The court martial system, a legacy of authoritarianism, was finally amended and brought into the regular court system in 2013 — but this came only after an innocent life had been sacrificed. Nevertheless, it is an example of citizens’ power completing a democratic transition from the bottom up.

To the outside world, it appears there have been some corrections to the authoritarian-era judicial system that violated human rights and suppressed dissidents at every turn. However, to this day the personnel structure has been sealed off, conservative, and rigid. The quality and integrity of the networks of judges, prosecutors, police, and investigators upon which justice depends have always been criticized. In particular, those in power still sink to using individual cases and personnel control to manipulate political cases, giving an authoritarian impression. Basic human rights and judicial independence are sacrificed on the front lines. What’s worse, through the outer packaging of the judiciary, the constitutional order of democratic separation of powers can thus quickly disappear during times of political infighting.

Judicial procedure should protect several principles, including basic human rights and the dignity of human beings. If the principles of keeping investigations private and allowing the presumption of innocence are not followed, judicial authorities’ human rights consciousness, fairness, and independence are called into question. Besides that, citizens cannot believe in the professional skills of judges and the quality of their verdicts. Some cases drag on for years without resolution. Some verdicts are divorced from social realities or vary based on the individual. There are cases of repeated accusations. Another grave issue is delay and resistance to reform of the selection, evaluation, and elimination systems for judicial personnel. This is a stumbling block to judicial progress.

In addition, current laws and regulations regarding imprisonment and the punishment of convicted persons are shrouded in thinking about special power relationships. Issues regarding medical treatment to ensure the health of convicts are especially ignored. Prison reform is an aspect of judicial reform that cannot be avoided.

II. Strategies and Goals

All citizens will participate in judicial reform, and the president will call a national judicial reform conference.

The goals of the modern-day judicial system are to pursue fairness and justice and to offer citizens effective and immediate protection of their rights and interests as well as channels for relief. The judiciary is an important place to realize constitutionalism, justice, and human rights protection. Judicial reform involves a wide range of aspects, including the portfolios of constitutional government agencies and civic rights as well as the effectiveness of democratic law and order.

Hence, related policy decisions must be given greater priority. The president must take responsibility for them, convene a national judicial reform conference, increase participation by civic groups, bring together reform strategies and opinions on every issue, make certain the goal of institutionalization of Judicial Yuan trials is achieved, establish “citizens’ justice,” move toward democratization, professionalization, and greater transparency, improve the quality and accessibility of the justice system, and through bottom-up conversations bring citizens into the judicial system, implementing the concepts that the judiciary is fair, independent, and for the citizens.

Ours is a democratic country. The judiciary should do away with authoritarian control systems and its role as intimidator. It should be independent of politics and the media and instead be for the people, with human rights protection and the rights and interests of citizens at its core. The participation in and oversight of the judiciary by citizens should be expanded, its professionalism and evaluation strengthened, and its openness and credibility bolstered. When citizens suffer injustice, friendly channels of judicial support should be offered them, and justice extended in a timely fashion to protect their rights and interests. When citizens break the law, sound legal and professional law enforcement personnel (such as judges, prosecutors, police, and investigators) should respect procedural justice and protection of human rights while discovering the truth and administering appropriate punishment.

III. Concrete Positions

A. Establish Citizens’ Courts

i. The exercise of citizens’ right to participate in the judiciary is a concrete realization of the principle of constitutional popular sovereignty and an important characteristic of the democratization of justice. Though different countries have different legal systems, those nations that follow the rule of law have long affirmed citizen participation in the judiciary. The spirit of citizen participation in judicial decisions is the hope that the empirical rules and conceptions of justice of people from different fields can be brought into findings of fact and application of the law, averting the risks that can arise from professional justices arrogating all the power over trial judgments. However, the “jury system” created by the Judicial Yuan in 2011 contradicts the principles and spirit of numerous countries under the rule of law. In the Judicial Yuan-proposed jury system, citizens have no power to actually participate in judgments. Thus the goal of democratization of the judiciary is not attained.

ii. In accordance with the system of deliberative democracy, participation in the judiciary by private citizens is to be expanded by such fundamental methods as implementation of a jury system where the jury has some degree of decision-making power over the verdict. Citizens will be allowed to participate in the judicial process, which will be made more transparent in order to keep judges from holding monopolistic power and abusing their freie Beweiswürdigung (right to freely make a decision), prevent judgments that are severely divorced from social experience, and raise citizens’ faith in judicial decisions. Based on this principle, supporting measures and judicial reform timelines will be instituted in order to realize judicial democratization.

B. Correct the Positioning of the Judicial Yuan

The president will call a national conference on judicial reform in a timely fashion to review problems regarding the incomplete implementation of the 1999 reforms, reflect anew upon the separation between the highest judicial trial and administrative organs, evaluate how to implement Constitutional Court Decision No. 530, and quickly institutionalize Judicial Yuan trials.

C. Establish a Sound Constitutional Review Mechanism

The Constitution is the fundamental law guaranteeing citizens’ human rights. The authority and responsibility of constitutional interpretation and uniform interpretation of laws that are vested in agencies, including judgments over whether laws violate the Constitution and whether political parties violate the Constitution and must be disbanded, are crucial to the realization of legal rights. A constitutional violation review mechanism in line with the constitutional tenor will be established, and the threshold for constitutional interpretation will be rationalized. Supporting measures needed for a sound system of constitutional interpretation will be drafted.

D. Comprehensively Review the Human Rights-Violating Criminal Justice System

i. Enrich judicial personnel with constitutional literacy and realize the spirit of the human rights protections and right to a fair trial enshrined in the U.N. Covenants, especially the International Covenant on Civil and Political Rights. Comprehensively review systems that violate the rights of people in the criminal justice system. Formulate a mechanism for transitional justice. Investigate the truth of and responsibility for capricious and arbitrary judgments. Remove from office those judges, prosecutors, police, and investigators who violate human rights.

ii. Implement the principle of keeping investigations private. Strictly adhere to procedural justice. Avoid declaring someone guilty in the world of public opinion before a trial is held, an action that leads to unfair trials and harms the reputation and credibility of people involved.

iii. Implement the principle of presumption of innocence and rules regarding evidence. Keep the prosecution’s evidence from being placed in the judge’s dossier before the trial, instead saving all evidence for public usage by both the prosecution and defense when the trial commences. Confirm the status of prosecutors. Consider prosecutors at all levels a single unit and enshrine this principle by law to maintain consistency in prosecution standards. Confirm the independence of prosecutors.

iv. Strengthen the right to legal defense and establish mandatory legal defense requirements for the stages of police investigation and inquiry. In order to prevent abuse of criminal detention and meet the stipulations of Article 9-1 of the International Covenant on Civil and Political Rights, in concert with the constitutional interpretation of the grand justices the laws and guidelines regarding detention should be amended. The court should oblige the prosecutor to appear before it to give a briefing whenever someone is detained for investigation.

v. To realize the principle of presumption of innocence, detention should not be employed at every turn, nor should it be considered a kind of advance penalty. A consensus should be reached at the national judicial reform conference on a set of measures for alternative means of detention in order to prevent those who have been indicted from fleeing.

vi. In order to maintain the fairness of distribution and review procedures, establish legal standards for statutes and judges and avoid the use of internal administrative rules.

vii. Execute oversight and appropriate accountability mechanisms to prevent and punish rash indictments and non-indictments as well as indiscriminate mergers of cases and appeals by prosecutors and arbitrary remanding and retrials by judges.

viii. Establish an independent institution dedicated to determining whether to hold a retrial for a case that has already been decided, in order to more objectively decide on reinvestigations and retrials and give the opportunity for a fair trial to more innocents accused of crimes.

ix. Enrich local judicial manpower to bolster the investigative capabilities of frontline investigators, facilitating the division of responsibilities between the different levels of the court system in an efficient three-level pyramid structure. In this system, the court of first instance establishes the facts of the case, the trial in the court of second instance is based on the evidence gathered in the investigation or restricts new lines of attack and defense, and the court of third instance strictly reviews appeals regarding the relevant laws themselves.

x. Enrich the investigative and forensic equipment of the prosecutors, police, and investigators. Establish standards regarding the collection of evidence and forensic work. Deliberate the establishment of institutions solely dedicated to forensic science. Improve forensic capabilities to ensure the reliability and credibility of forensic science. Record investigations and trials and ensure the correctness of stenography.

E. Strengthen Judicial Personnel’s Professional Capabilities

i. Strengthen the human rights literacy and conception of the rule of law of law enforcement personnel such as judges, prosecutors, police, and investigators. Review and amend codes of ethics and rules of duty.

ii. While defending the principle of fair usage of judicial resources, establish courts dedicated to specialized fields to adapt to the diversification of social disputes. Also establish professional certification systems for the judges and prosecutors for these specialized courts in order to raise the quality of their judicial decisions.

iii. Review open mechanisms for evaluation of judges and dissenting opinions.

iv. Establish relief mechanisms for resolution of conflicts between Supreme Court precedent, judgments, and resolutions.

F. Review Judicial Personnel Appointments as well as Oversight and Elimination Mechanisms

i. Review the current examination-based entry mechanism. Establish fair standards for selection and cultivation so that there are not judges who lack social experience and the ability to clarify the truth or who make judgments that stand in rebellion against social justice and public sentiment.

ii. Continue to review the results of the administration of the Judges Act with respect to assessment and transfer rules, evaluation standards, evaluations of applications, and personnel elimination mechanisms for court positions and so forth. Make amendments where appropriate to achieve the goal of ensuring supervision, prevention of corruption, and elimination of unfit judges and prosecutors.

G. Establish Citizen-Friendly Court Environments

i. Make good use of social resource linkage and cooperation mechanisms to establish channels for citizens to use judicial resources.

ii. Establish unified settlement mechanisms for specified types of disputes (such as family cases).

iii. Establish investigation rules that thoroughly protect victims and prevent them from being hurt again or questioned multiple times.

iv. Improve laws and measures regarding indemnification and compensation for wrongful convictions.

v. Increase the transparency of judicial judgments and operations. For instance, establish judicial quality assessment indicators, principles for judges, regulations for declaring case assignments, and case schedules.

H. Universalize Education about the Rule of Law and Concepts of Judicial Reform Policy

i. Improve legal education. Strengthen the professional capability, human rights literacy, and acuity in observing life in society of the legal world. Fundamentally decrease the distance between citizens and the judiciary.

ii. Increase legal aid and as well as advocacy and education so that citizens understand the operations of the law and courts as well as the relief avenues and resources available to them. Don’t let legal and court organizations and mechanisms and judicial reform policies once again become frozen and incomprehensible words. Instead make them the practice of social values and justice.

I. Reform the Prison System

i. In order to guarantee the human rights of convicts, not only should standards be established by the law; moreover, whenever there is doubt or a dispute about the treatment of a prisoner, Constitutional Court Decision No. 691 and Article 16 of the Constitution should be implemented, allowing the possibility for relief through the immediate lodging of a complaint with the Judicial Yuan or an outside organization. This will prevent arbitrary behavior by executive agencies. In particular, a hearing procedure mechanism should be established to ensure the right of convicts to medical rescue. Examinations should be permitted as part of medical appraisals.

ii. To relieve prison overcrowding, adjust penal policy and increase the number of detention facilities. Hold a new review of the problems of insufficiency of prison management personnel, space, and resources.

iii. In response to the insufficiency of medical care resources for prisons, evaluate the effective increase of such resources. In the case that it would be difficult to make additions to a prison hospital, if necessary consider outsourcing medical treatment to outside personnel in order to ensure the basic medical rights and interests.

iv. The funds for work related to convicts must be made transparent. Where medical care is insufficient, consider the feasibility of giving priority to the supplementation of medical resources.

v. To effectively dispel the lack of transparency of prison operations, establish truly effective evaluation mechanisms. Objective, fair standards must be established, and the evaluators must include participants involved in social justice causes.

 

Dr. Tsai Ing-wen is DPP chairperson and presidential candidate in the 2016 elections. This article originally appeared on the Tsai campaign’s Web site. Translated from the Chinese by Anonymous.

3 Responses to “VOTE 2016: Tsai Ing-wen’s Judicial Reform Platform”

November 13, 2015 at 7:30 pm, AR said:

I don’t quite know where to start – this article certainly is a breath of fresh air. I welcome it very much. For the sake of brevity I shall just make a couple of points; (i) my own 4 published articles on Thinking Taiwan (along with their many links and references) support such necessary changes and give many examples of good practice around the world (ii) as for prison reform, building ever more prisons is not the answer. Taiwan’s prisons I understand are already at 120% capacity. They certainly fail to meet international standards. Instead, firstly stop sending to prison first time non-violent small scale drug offenders. They are clogging up the system. Drugs are mostly a health problem, not a security problem. Plus it will save the Taiwan tax payer money not putting them in prison. The world is becoming aware of this and changes are afoot (iii) learn from Best Practice. Here are merely 2 stories of relevance:

http://www.theguardian.com/society/2013/dec/01/why-sweden-closing-prisons

http://edition.cnn.com/2015/10/21/us/prison-reform-overview/

(iv) Taiwan has had armies of international judicial “experts” and others visit and report and make recommendations. So as Dr Tsai Ing-wen has indicated, Taiwan already knows what needs to be done.

I strongly agree with and support Dr Tsia Ing-wen in her and her party’s efforts to tackle all these issues.

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November 14, 2015 at 5:34 am, Michael Stainton said:

An impressive and thoroughgoing approach. What exactly do you mean by “citizens courts”? It sort of looks like a jury system but the term jury and trial before jury seems to be consciously avoided. Why?

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November 15, 2015 at 3:56 am, rule of law said:

“Review the current examination-based entry mechanism. Establish fair standards for selection and cultivation so that there are not judges who lack social experience and the ability to clarify the truth or who make judgments that stand in rebellion against social justice and public sentiment.”

Judicial decisions should not conform to public sentiment. Judicial decisions should uphold the law and thereby ensure justice free from populist intervention. If judges were to rule based on public sentiment and the review process of judicial decisions was to be based on public sentiment, many decisions would be illegal and violate UN Conventions and human rights in general.

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