By Jerome F. Keating Ph.D.

Many of you had hoped to attend the presentation by Feng-jeng Lin, Executive Director of the Judicial Reform Foundation last week.

The Judge Act Bill that his foundation had sponsored and supported did pass in the Legislative Yuan this past week, though not with all of the checks and balances they wished; the main issue being that the bill had only judges policing and evaluating poor behavior of other judges; this threatens to preserve “Dinosaur Judges.”

I am attaching something I wrote after the presentation that brings out some of its points as well for those unable to attend.

Also here is a link describing the problem as it stood up till the year 2000 that was found by Tom Hall. It has historical background on the way the system used to work here and the hangover effect.

There is more that needs to be done, and awareness is a good start.

Taiwan’s Court Reforms a Matter for Everyone

Taiwan still carries a lot of baggage from its past one-party state days under the Chinese Nationalist Party (KMT). One particularly large piece of that baggage has been the nation’s need for judicial reform. This need had been long evident but it could only begin to be met after Martial Law was lifted in 1987.

Nonetheless, efforts to address it with appropriate legislation had proven futile. Finally however in this current legislative session a bill, called the “Judge Act,” was finally passed. What has spurred on this change? There have been several forces at work; one has certainly been and continues to be public awareness of the problem.

For as regards the Judge Act, the tipping point does seem to be the public awareness that has come about unexpectedly with abuses in two high profile murder cases coming at the same time. The first case is one that had been around for a long time, that of the Hsichih Trio (a murder case with many twists and turns dating back to 1991. The second is the recent developments in the wrongful execution of Chiang Kuo-ching (1997) for a rape murder case involving a young girl in 1996. In both cases among the many flaws and discrepancies in the courts’ guilty decisions has been the fact that the confessions of all suspects involved were gotten through torture. In the Chiang case, however, an unforeseen break was that another person Hsu Jung-chou recently admitted to the crime. With this, the courts and the Judicial Yuan which had trouble sweeping both cases under the rug at the same time found a way out.

Recognizing and throwing out evidence where confessions have been illegally achieved through torture and other means is one of the many issues addressed in the Judges Act along with a system that will evaluate judges and remove incompetent ones. What helped the legislation? Traditionally Taiwan’s court system has had the unfortunate perception that one is guilty until proven innocent even if confessions are achieved by torture. In the case of Chiang Kuo-ching, it was easy for prosecutors and the courts to admit mistakes in the trial because they had another person (Hsu) who admitted to the guilt of the murder. In the case of the Hsichih Trio, it is harder for the courts to admit errors and to let the three go because they do not have any guilty parties to replace the suspects with.

But public awareness has been only half the battle. Steadily working for changes in the system has been the Judicial Reform Foundation (founded in 1995) which has been tirelessly at work for the past decade and a half. Lin Feng-jeng, the current Executive Director of the Foundation spelled out the issues in this way. Taiwan has a legal system similar to the Continental Legal System of Europe, and so career judges have had too much power and protection from the Constitution as regards their positions. Coming out of a one party state history, Taiwan’s system has been rife with 1) corruption, 2) the interference of politics in court cases — a natural result of a one-party state, and: 3) a plethora of judges who lack the necessary experience and background for making critical judgments. The KMT dominated Legislative Yuan has had little motivation to change the system since the one-party state days, while the Democratic Progressive Party (DPP) has lacked the power to change it.

In the past, one could qualify to be a judge simply by graduating from law school and passing an exam. The legislation involved proposes that judges be qualified by a stricter examination system as on the Continent, and that they be preferably chosen from experienced lawyers. Likewise the legislation has the establishment of an independent commission to get rid of poor judges, but here it breaks down from what the Judicial Reform Foundation recommended. The foundation had wanted civilians to also be appointed to the commission, but the current bill has maintained that only judges will pass judgment on their own. The Reform Foundation’s Director Lin feels here that opposition from the Legislative Yuan in the past is because too few of them have actually been lawyers and therefore they do not realize the impact judges have on the court system.

The Judge Act has been passed, but the public cannot rest there. Next should be a “Prosecutors Act.” Taiwan also needs legislation to guard against abuses of power by prosecutors. For example, at present, prosecutors have too much leeway in applying the Rule of Procedures as regards what evidence can be allowed or not. Similarly prosecutors can allow wire-tapping and command a search of a suspected person’s home or office simply on their own discretion. In these areas as well as pre-trial detention, too much is left to the interpretation of the prosecutor.

These reforms and future efforts are matters that all need to follow. Taiwan’s democracy is young and the protection of individual rights is still a work in process. As for the public, unless they are personally affected by a case, most citizens continue to remain unaware of the reforms needed in the courts.

Other writings by Jerome Keating are found at http://zen.sandiego.edu:8080/Jerome