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The judiciary’s ignorant approach
By Wang Jaw-perng 王兆鵬
Tuesday, Apr 20, 2010, Page 8
In 2004, I published a paper in the National Taiwan University Law Journal
(臺大法學論叢) entitled “A Tentative Proposal for a Speedy Trials Act in Taiwan”
(建構我國速審法之芻議). Recently, the legislature has been deliberating a draft fair and
speedy criminal trials act (刑事妥速審判法), proposed by the Judicial Yuan. However, I
am not happy with this development at all and debate thus far has done nothing
to assuage my concerns.
Victims of crime invariably want their cases to be handled as quickly as
possible, while those accused of crimes are also generally unwilling to see
their cases in legal limbo for 30 years. Unfortunately, the performance of the
judiciary has been very disappointing. Against this backdrop, even though a
draft fair and speedy criminal trials act sounds good, we have to ask whether in
its current form it is likely to solve any problems. The answer is a resounding
no.
A good doctor looks for the causes of disease. The proposed act ignores the
sources of problems, fails to offer any actionable solutions and is in fact
little more than a band-aid. Regrettably, legislators and high-ranking
government officials do not appear to understand where the real problems lie and
yet are still intent on passing this draft law, a situation that worries me
deeply.
The draft law is aimed at regulating cases that have been stuck in court for six
to 10 years without a verdict. My first thought is what about cases that have
been in the courts less than six years? Isn’t five years waiting for justice
also unreasonable? Once the Judicial Yuan’s draft is passed, will the number of
drawn-out verdicts really fall? Senior officials at the Judicial Yuan and
legislators should know that is highly unlikely. In which case, why are they so
intent on passing this draft act?
The issue of speedy trials is complex. Too much haste runs the risk of bad
decisions and careful decisions require time for proper deliberation. Indeed,
the judiciary needs to strike a delicate balance in attending equally to the
interests of all parties.
The first time the Judicial Yuan held a public hearing on the issue of speedy
trials, I suggested that specialized committees be established to represent
different interests, thereby maximizing the benefit of reform, but the Judicial
Yuan ignored my suggestion. In numerous hearings, academics and experts have
criticized the draft for being full of flaws, but the Judicial Yuan has shown
little interest in their opinions. A counter proposal from civic groups demanded
that the Judicial Yuan establish a neutral research and examination committee to
study why criminal cases drag on and to formulate regulations to remedy this
problem. The Judicial Yuan turned that idea down. These incidents all show that
while Taiwan does not have speedy verdicts, it does have speedy legislation. It
is also a concern that the Judicial Yuan is apparently displaying the same
concern for its legislative record as the Cabinet.
In 1974, the US Congress drafted the Speedy Trial Act, aimed at bringing cases
to a close in a timely fashion while also paying attention to the rights and
interests of the public and the accused. This law details how cases should be
handled in a speedy fashion. Crucially, it does not place speed above the
discovery of truth and protection of human rights. The act even has regulations
against the prosecutor or the accused trying to control procedures to drag out
cases to their own advantage.
Under certain circumstances, the court can confiscate one-quarter of the
lawyer’s fee or fine the prosecutors. Because this act greatly changed previous
sentencing practices, the US Congress established a five-year “sunrise” clause,
meaning that many new legal regulations only came into effect after that period.
During this time, courts can make whatever adjustments they deem necessary to
follow the new legal regulations, including making proposing amendments to
Congress on difficult legal issues. After the federal government drew up the
Speedy Trial Act, states across the nation adopted similar acts to manage the
pace of sentencing. While cases are sometimes delayed in the US, everything is
open and transparent and it is therefore clear whether a delay in sentencing is
the result of the system or human error.
When compared to US legislation, the Judicial Yuan’s draft is crude, shallow and
irresponsible. However, the main problem is not the content but rather the
methods and processes that come into play when complicated judicial disputes
arise in Taiwan. Lately, the legislature has held closed-door discussions on the
draft fair and speedy criminal trials act and lawyers and human rights groups
have been shut out. Experts have also not been consulted. The legislative
handling of this draft is an illustration of how judicial policies are
formulated in Taiwan, an area of serious concern for a long time.
Wang Jaw-perng is a law professor at National Taiwan
University.
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