Political Wisdom in Judicial Reform: Evaluating the Viability of a Dual-Track Jury and Lay Judge System

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Recently, Judge Chen Szu-fan published an article titled "The Right to Litigate Must Not Be Used as a Judicial 'Vivisection' Experiment," opposing the civil society's advocacy for the simultaneous trial implementation of both jury and lay assessor systems. As Judge Chen has long been responsible for institutional research on citizen participation in trials at the Judicial Yuan and thus represents official opinions, it is necessary for civil society to refute and clarify in order to set the public record straight.

First, what Judge Chen intentionally omits is that the Judicial Yuan and civil society organizations had been engaged in intensive consultations regarding the feasibility of simultaneously trialing both the jury and lay assessor systems since late 2018. In May 2019, the Judicial Yuan even synthesized the opinions of both sides and proposed a six-year draft "Act on Criminal Trials with Citizen Participation" featuring the dual-system trial. This proves that the dual-system trial was not a unilateral advocacy by civil society, but also a scheme deemed feasible by the authorities.

Today, the consensus reached in the 2019 consultations has been overturned, which is likely, as the media puts it, the result of political infighting within the bureaucratic system, with certain individuals intentionally obstructing a nearly finalized consultative version. Otherwise, the issues raised by Judge Chen in her article attacking the parallel implementation of the two systems would have been fully discussed and resolved during last year's consultations. All current arguments confuse cause and effect, serving solely to obstruct cooperation between the authorities and civil society, stubbornly preventing judicial reform from successfully gaining public support, and desperately digging pitfalls.

Second, the article accuses that "dual-track parallel implementation lacks a legal basis." In fact, the legal difference between the jury and lay assessor systems lies in the role judges play during the trial: judges in a jury system maintain neutrality and objectivity, while judges in a lay assessor system participate in the determination of facts and application of law. Civil society believes that to reform the current situation of judges abusing their power, the jury system is the solution. The authorities believe that citizens lack sufficient legal literacy, and the lay assessor system can ensure the quality of judgments. The final consensus reached in the consultations was that, provided most litigation procedures remain the same, defendants would be allowed to choose "jury-style" or "lay-assessor-style" deliberations, thereby using actual case experience to verify whether the legal rationale of the jury or the lay assessor system is more suitable for Taiwan.

Judge Chen emphasizes: "Responsible policy decision-makers should prudently select an appropriate system after rigorous comparison and evaluation." By this standard, trialing the two systems for six years is precisely a responsible policy decision, best able to forge a consensus among different opinions and unite social forces. The Judicial Yuan's arbitrary choice to implement only the lay assessor system is, by comparison, an unwise and reckless rush.

Finally, the article accuses that "shifting responsibility and dumping the choice on the defendant" is clearly an emotional outburst overriding rationality. In 2004, the Code of Criminal Procedure introduced the American plea bargaining system, allowing defendants who choose to plead guilty to negotiate for reduced sentences or probation. During the legislative promotion of plea bargaining, it similarly faced comparable criticisms and doubts, yet after implementation, it indeed reduced the trial burden on judges. Other reforms originating from German and Japanese legal systems, such as summary criminal judgment procedures and deferred prosecution systems, also grant defendants a certain degree of procedural choice. Judge Chen is not unaware of these judicial reform experiences referencing foreign legal systems, yet she claims that civil society's advocacy for the parallel implementation of the two systems ignores fairness and justice, smearing it as a "frankenstein judicial system." This lacks a rational attitude toward policy discussion.

Civil society advocates that case deliberations should distinguish between "jury-style discussions independently decided by citizens" and "lay-assessor-style discussions jointly decided by judges and citizens," with the purpose of evaluating the positioning of judges in trials and finding the model most suitable for Taiwan. As for how to choose the deliberation method for a case, letting the defendant choose is not set in stone; it could also be determined according to the prosecuted offense or the court trying the case. In reality, whichever of the two systems is chosen does not violate the principle of equality. This is because all cases meeting the trial regulations will apply the same procedural laws; this is the substantive equality guaranteed by what our Grand Justices have always referred to as "treating equals equally and unequals unequally." On the contrary, the Judicial Yuan forcing the people of Taiwan to accept the lay assessor system chosen by bureaucrats is true inequality.

Citizen participation in trials is the judicial reform policy most valued by President Tsai Ing-wen. On March 27 of this year, she publicly stated that "the government will strengthen the communication platform with civil society, implementing communication and dialogue mechanisms at the ministerial and Yuan levels respectively, allowing the model and spirit of the National Judiciary Reform Conference to be continuously implemented." Judicial reform requires the political wisdom of communicating with the people—something the Judicial Yuan was able to do last year, so why can the current Judicial Yuan not do it now?

The political wisdom of a democratic society is nothing more than putting aside one's airs, adopting an open and transparent attitude, and fully cooperating and collaborating with civil society. If the Judicial Yuan wishes to promote the judicial reform of citizen participation in trials yet excludes citizen participation during policy formulation, one must ask how it expects to win the support of the people.

※ This article was published in the Apple Daily on 2020.05.12