Written by John Burn.
Image credit: Photo by CEphoto, Uwe Aranas.
In her inauguration speech in 2016, it was claimed that Tsai Ing-Wen received her most rapturous applause for her pledges to institute reform of the judiciary and criminal law proceedings. In a climate of widespread public mistrust in a perceived detachment of judges’ interpretations of the law and public morality, Tsai embarked upon her stage of the long and slow relay of reform. So far, her administration’s most significant stride in this direction has been the Citizen Judges Act, which came into effect on the 1st of January this year. Yet this measure is only the latest legislative development in the long, complicated course of Taiwanese judicial reform.
Fundamentally, supporters of judicial reform in Taiwan strive to redress the perceived disconnect between the Judiciary and the people. A profound distrust has existed since the Martial Law period, with many people considering the Judiciary’s decisions to have been heavily influenced by the KMT leadership. Yet the integrity and decision-making of the Judiciary remain questionable today.
Several high-profile cases in 2010 and 2011 (in particular, a case that saw a man acquitted of sexual offences against a young girl based on a judge’s interpretation of events that was broadly criticised as dubious and dated) led to widespread denunciation of ‘Dinosaur Judges’. In 2021, the Control Yuan confirmed corruption charges against a Supreme Court Judge which detailed prolonged, inappropriate interactions with businesspeople, leading to the Judge’s impeachment.
Although the Judiciary clearly needs these issues to be addressed to gain public approval, the institutions and structures of Taiwanese Law are entrenched in particular approaches to many elements of criminal trials.
Taiwan’s legal system is modelled indirectly upon that established in Prussia in the 19th Century. Imported to Taiwan firstly by the Japanese and then by the KMT, who had themselves adopted a Japanese-based judiciary in 1912, it is a species of Civil Law- reliant primarily upon laws made by the legislature rather than the Common Law of the Commonwealth countries and the USA, which nominally rely upon laws made by judges.
Procedurally, Taiwanese courts are inquisitorial, meaning the Judge has a role in questioning witnesses and establishing facts. This differs from adversarial systems, with an advocate to question witnesses, in which the Judge acts primarily as a mediator during the trial.
The direction of reform has been towards this adversarial framework. Reformers admire adversarial procedure because the main problem area in the current system is seen to be the power of the judges. Accordingly, they also tend to push for introducing jury trials to take the determination of guilt out of the judges’ hands.
Already, procedural law has changed to reduce the significance of the pre-trial examinations of evidence dossiers and move these examinations into the courtroom. However, measures such as this, although reducing the power of judges, have not been seen to go far enough in aligning judges’ decisions with the morality of the general population.
However, moving Taiwan away from the well-established Civil Law bases towards American and Commonwealth models (founded on Common Law principles of the role of judges) is a tall order. Legal educators, law schools and the senior Judiciary themselves all have experience in a completely different understanding of the role of judges, not only within trials but also in creating laws for the American and Commonwealth systems.
Therefore, protest movements on these issues have emerged from both sides, with the Judicial Reform Foundation of Taiwan spearheading calls for reform and prosecutors’ associations providing vociferous and occasionally dramatic resistance. For example, in 2012, a lone prosecutor conducted a protest in front of the Supreme Court over a revision to court procedures (a part of the general reforms conducted in 2012) that required judges to investigate only the evidence that supported the case for the defence, laying all the burden of proof upon prosecutors.
Tsai’s Second Judicial Reform Council in 2017 (The first was in 1999) involved the Judicial Reform Foundation instrumentally in creating the agenda. The recommendations emerging from that Committee were radical and wide-reaching, suggesting reforms in the number of senior judges, legal education curricula, and the introduction of jury courts. Yet the Tsai administration has only so far passed the Citizen Judges Act in its legislative programme. So how much progress does it represent?
The enactment of the Citizen Judges Act represents the first inclusion of non-expert members of the public in court procedures that have yet to be implemented in real trials, with a ‘Trial Observers’ proposal failing to gain widespread approval 2012. This would have had the members of the public occupy a far more passive, purely advisory role in the trial. It was, however, rejected by pro-jury elements, who considered it would not contribute effectively to a bilateral interface between judges and the observers since the observers had no power in the trial.
Like jury duty in the UK or USA, the lay judges are randomly selected from the local citizenry. Six are chosen, who sit alongside three professional judges and have the same powers and responsibilities during the trial as their permanent counterparts. Regarding sentencing, decisions must be approved by six of the nine judges, of whom at least one must be a professional judge. Until 2026, the citizen judges will only sit in cases in which the defendant is accused of having intentionally committed a crime which caused the death of a person, and even after 2026, they will sit only in trials in which the defendant is accused of a crime that would carry a minimum of ten years imprisonment.
The Citizen Judges Act seems to represent fairly limited progress when considering its scope. However, it is significant because it is a reform that has received acceptance from all interested parties in Taiwanese law. Reforms aimed at incorporating the public directly into trial procedures instinctively necessitate the increasing gravitation towards American-modelled procedural law, which makes internal resistance within the Judiciary understandable. It is no small matter to invalidate over a century’s juristic expertise in the German-based model overnight. Therefore, any judicial acquiescence on a course of action that can help restore public trust in them must be considered significant.
The progress of judicial reform in Taiwan, such an important focus for progressive elements in the country, has been slow and seems doomed to remain slow. It has, in the last two decades, been flowing inexorably in the direction of the American models, but the differences between the American-influenced and the German-influenced jurists, between the Judicial Yuan and the government, and between prosecutors and politicians, have become irreconcilable. It is, therefore, unimaginable that a single sweeping piece of legislation will instantly traverse the quagmire.
Tsai’s Citizen Judges Act is an important step in making the Judiciary and courts more transparent to the public. At worst, it will be insufficient to achieve these goals completely, but it could still be a foundation for further legislation. But at best, bringing judges directly in contact with the public could inform the judges in addressing any anachronisms in their interpretations of the law and restore citizens’ confidence in the Judiciary by offering them a greater understanding of those interpretations.
John Burn is a postgraduate student reading for an MA in Taiwan Studies at SOAS, University of London. He is researching factors affecting electoral trends in Jinmen and Mazu.
Taiwan Insight 
