20100119 The backsliding of judicial reform

The backsliding of judicial reform

By Celia Llopis-jepsen 游思麗
Tuesday, Jan 19, 2010, Page 8

You’ve probably heard of the Hsichih Trio. What you probably haven’t heard is that this case and others like it helped precipitate one of the most important judicial reforms in Taiwan’s history — amendments to the Code of Criminal Procedure in 2002.

As a result, should you now find yourself to be a defendant in a criminal case, you have rights in presenting your side of the story that the three young men arrested in 1991 did not have.

But those rights are not enough.

A case in point: Even now, a defendant in a civil case that goes to the Supreme Court is entitled to a public defender, but a defendant facing more serious criminal charges — even leading to the death penalty — is not.

There is no justification for this, but there is an explanation. Historically, the courts have presumed defendants in criminal cases to be guilty until proven innocent. Their rights, and the risk of wrongful conviction, were not a concern.

Legal reforms in the past 10 years have tried to change that, but this mentality is reflected in parts of the law to this day.

Last week, Freedom House lowered Taiwan’s civil liberties rating in its annual Freedom in the World report, citing in part the inadequate protection of defendants’ rights in criminal cases, and naming as an example a “high-profile murder case” — perhaps a reference to the Chiou Ho-shun (邱和順) or Hsu Tzu-chiang (徐自強) cases, both of which saw fresh convictions in retrials last year.

Let’s flesh this out a little. What we should say, and the reason Freedom House was right to lower its rating, is that despite a momentous overhaul of the courts eight years ago that was designed to address this problem, the institutional capacity to abuse defendants’ rights remains.

Recent proposals to amend the law further indicate that legal reform may take a turn for the worse. If the proposals from the Ministry of Justice and the Judicial Yuan proceed, we should no longer be concerned that reform has slowed; we should worry instead that it may be backsliding. The presumption of guilt seems to be gaining legitimacy again, despite years of efforts to root it out.

In 1999, disgust over cases like the Hsichih Trio came to a head. A landmark National Judicial Reform Congress that had been called to outline steps toward a fairer judiciary proposed divesting judges of their investigative powers and strengthening the position of the defendant in court.

Three years later, amendments to Articles 161 and 163 of the Code of Criminal Procedure were passed, and with that, Taiwan’s courts adopted a modified adversarial system. Before then, they used an inquisitorial system — often associated with continental Europe — rather than the adversarial system of Britain, the US and other places where English law has left its mark. Taiwan’s system now is a version of the latter.

The difference is this: Judges today are expected to listen impartially and passively to two sides of a case — one presented by the defense, one by the prosecution. (Before 2002, judges played the role of prosecutor, investigating the case themselves. Prosecutors indicted suspects, but did not have to attend court hearings.) The defense, meanwhile, is allowed to cross-examine the prosecution’s witnesses and question interpretations of forensic evidence.

The spirit of the change was that the prosecution and the defense should enjoy the same status in court and have the same opportunities to make their case, while the judge should not be in direct conflict with the defendant.

The inquisitorial system may work well in some countries, but it was not working well in Taiwan 10 years ago, when the country began mulling these changes.

Taiwan was a young democracy, only recently emerged from the world’s longest period of martial law; a country where judges were not required to have law degrees, but were trained by an authoritarian regime.

The shockingly weak case against the Hsichih Trio, among others, said it all: The courts could not be trusted to dispense even-handed justice.

For this reason, the year 2002 was a victory for judicial reform advocates. But it wasn’t a miracle. Changing the law took Taiwan a few years — but what about changing court culture?

Eight years down the line, defense lawyers are not always on an equal footing with prosecutors, while judges at times may slip out of their redefined roles. And as for the presumption of innocence, there is cause to believe that the Hsichih Trio, Chiou and Hsu are still at trial so many years after their cases began not because they have been proven to be guilty, but because they have not been proven to be innocent.

These are some of the obstacles the judiciary is still struggling with — and now the Ministry of Justice and the Judicial Yuan risk making the process even harder.

In October, the Judicial Yuan passed the Fair and Speedy Criminal Trials Act (刑事妥速審判法), which, if approved by the legislature, could prevent defendants who have been wrongfully detained for many years from receiving damages under the Compensation for Miscarriages of Justice Act (冤獄賠償法).

The draft law also seems to validate the presumption of guilt. For example, one provision states that not-guilty verdicts in long-running cases should be final if the defendant is found innocent at three separate High Court retrials. What critics rightly wonder is why a defendant should have to be found innocent three times to be acquitted.

The justice ministry, meanwhile, is mulling changes to the Criminal Code that are no better. These include, but are not limited to:

• Restrictions on “inappropriately” publicizing details of court cases (likely to have a chilling effect on journalists, civic groups and lawyers).

• Barring lawyers and defendants from “disobeying the orders of judges and prosecutors” or “speaking inappropriate words” to them.

• Extending the perjury law to encompass defendants, barring them from “concealing evidence” and threatening lawyers with up to seven years’ prison for abetting perjury.

• Barring lawyers from “harassing” witnesses.

(These changes are explained in the Taipei Times reports “MOJ proposal sparks concern among lawyers,” Dec. 18, page 1, and “Bar association attacks MOJ plans,” Jan. 5, page 3.)

The proposal has academics and lawyers crying foul, warning that the amendment would infringe on the right to remain silent and the right not to incriminate oneself, while intimidating lawyers out of putting together the best possible defense for their client.

Can the defense and prosecution enjoy equal footing if defendants and lawyers are bound under penalty of imprisonment to obey prosecutors’ “orders”?

The justice ministry and Judicial Yuan proposals may not threaten the distinct roles for judges and prosecutors set out under the adversarial system, but they could subvert the spirit of the system by validating the presumption of guilt and weakening defendants’ rights.

Articles 154 and 301 of the Code of Criminal Procedure state that every defendant shall be presumed innocent until proven otherwise, that guilt can only be proven through evidence and that absent this evidence, the defendant shall be acquitted.

Ask judicial reform experts what it will take for these principles to be applied consistently in Taiwan’s courts and some of them just shake their heads.

“A new generation of judges” is a common answer.

In other words, progress is not just a matter of changing the law — it takes time, too.

But in the meantime, is it too much to ask that the justice ministry and the Judicial Yuan refrain from making things worse?

Celia Llopis-Jepsen is an editor at the Taipei Times.