20100723 Justice must be seen to be fair

Justice must be seen to be fair

By Wu Ching-chin 吳景欽
Friday, Jul 23, 2010, Page 8

The current case of alleged collective bribe-taking by judges and prosecutors has sent shockwaves through Taiwan’s judiciary.

The background to this affair is a corruption case in which former Chinese Nationalist Party (KMT) legislator and Miaoli County commissioner Ho Chih-hui (何智輝) was charged with taking bribes to favor certain parties in handing out work contracts on the Tongluo (銅鑼) annex of the Hsinchu Science Park.

Ho was sentenced to 19 years at his first trial, which was reduced to 15 years at the second trial. However, during a retrial in May, he was acquitted of all charges, sparking immediate controversy.

Given the presumption of innocence until proven guilty, it is too early to say whether the High Court judges who acquitted Ho really accepted bribes. Nevertheless, the affair highlights major problems in the existing structure of judicial procedure.

In Taiwan, the second trial — the first appeal in criminal cases — retries the case on facts as well as law. That makes the second trial identical to the first trial, as the facts and evidence have to be investigated all over again. This often leads the parties to a case to regard the first trial as a practice run, and the second trial as the main event.

In other words, the goal of a continuous trial in the first instance is not achieved as the verdict of the first trial is nearly always appealed. This increases the High Court’s workload and wastes precious judicial resources. Cases may be further appealed to the Supreme Court, where they are handled as trials of law after the fact, and in principle oral argument is not admitted. If the Supreme Court encounters doubtful points of fact, it is required to remand the case back to the High Court for a retrial.

In most countries, the higher the court, the fewer cases it handles. In Taiwan, however, this pyramid structure presents a bulging waistline at the level of the High Court. It also means that attempts to influence the outcome of cases by paying bribes are concentrated on High Court judges.

Unfortunately, the widespread belief that the decisive battle is fought at the second trial has severely eroded public faith in the fairness of the judicial process.

If we want to resolve this imbalance in the judicial structure, it is necessary to reform the second trial to make it more strictly a trial after the fact. Doing so would greatly reduce the number of appeals and workload of the courts.

However, such a limitation would only be possible if initial trials could really be made continuous. If trials at the first instance continue to be tried separately, as they are now, and the right to appeal were arbitrarily limited, that would undermine the right to a fair trial. It would also probably shift the focus of bribery to the courts of the first instance.

To achieve continuous trials, one solution worthy of consideration is the adoption of a system of citizen participation in major cases.

Last year, Japan initiated a system of lay judges, called saiban-in. Major cases must now be judged by a panel of nine people — six lay judges randomly chosen from the electoral register and three professional judges. In order not to unduly disrupt the lay judges’ daily lives, the trial process must be completed within three consecutive days, rather than intermittently, as they were in the past — a situation that Japanese people jokingly called “May showers.” The requirement that the trial must be concluded in three days makes the judicial process more economical and also compels the parties to the trial to concentrate their efforts on presenting the best possible case, so as not to lose whatever initial advantages they may have. The purpose of discovering the truth is thus efficiently attained. Besides, there are six lay judges alongside three professionals. This numerical advantage makes it hard for the professional judges to make arbitrary decisions, and brings the trial and verdict process closer to ordinary people. Perhaps more importantly, it also makes bribery more difficult and prevents external interference in the execution of justice.

Over the past decade, Taiwan’s criminal justice system has changed quite a lot, but many problems persist and these can quite literally impact anyone. If even judges and prosecutors handling corruption cases can be targets of corruption charges, the public needs to take notice and not just disregard such developments examples of corrupt officialdom. As for those in charge of the system, they have an even great obligation and public duty to think seriously about how to improve the practice of justice in Taiwan.

Wu Ching-chin is an assistant professor in the Department of Financial and Economic Law at Alethia University.