Justice Belongs to the People, and the Courts Belong to the People

Taiwan's judiciary, more than 60 years since the Nationalist government relocated to Taiwan, remains criticized by the public, and public trust in the judiciary remains low. Every head of the Judicial Yuan upon taking office proclaims how they will reform the judiciary, but most end up in nothing. When the demands for judicial reform from the public and all sectors of society reached their peak, it prompted the convening of the 1999 National Judicial Reform Conference. Because judicial reform issues were comprehensively explored and organized prior to the meeting, the three-day conference was able to conduct holistic discussions on related judicial issues, reaching consensus on some parts, while adopting roll-call resolutions for non-consensus parts to serve as a reference for judicial authorities for judicial reform. At that time, President Weng Yueh-sheng of the Judicial Yuan immediately formulated a comprehensive timetable for the progress of judicial reform based on the consensus or resolutions of the conference (since judicial reform is not a piecemeal task and should be holistic, with prioritized approaches and a scheduled timeline), and regularly reviewed the progress, demonstrating reform determination and momentum. For a time, the reform momentum was strong, but later due to political factors, two important bills promoting judicial reform—the amendment to the Judicial Yuan Organization Act and the legislation of the Judges Act—failed to pass smoothly in the Legislative Yuan (and have not been legislated to this day), thus affecting the entire promotion of judicial reform. After President Weng's term expired and he retired, the momentum dissipated. The new President Lai Ying-chao brought new approaches (or as some said, no intention to act), causing the momentum of judicial reform to plunge precipitously. Judicial chaos emerged endlessly in 2010, and public grievances over dissatisfaction with the judiciary rose day by day, leading to the departure of President Lai Ying-chao and the inauguration of President Rai Hau-min, which began yet another wave of new governance.

The core of the judiciary lies in trials, and trials are wielded by judges. In our country, judges have traditionally been recruited from law school graduates who pass the judicial officers examination, undergo two years of training at the Judges and Prosecutors Training Institute under the Ministry of Justice, and are then assigned as candidate judges or prosecutors for five years (formerly one year), during which they independently adjudicate cases. During President Weng's tenure, in response to demands from judicial reform groups, candidate judges were prohibited from serving as sole judges; however, due to a shortage of judicial personnel, this was later changed to allow them to solely adjudicate "Yi" (易) category cases. Imagine whether a candidate judge produced through this process, lacking social experience and judicial expertise, is competent to handle independent adjudication. Furthermore, such a judge, lacking social experience from the very beginning, even after ten or twenty years on the bench, derives their social experience solely from the perspective of judicial work rather than through diverse experiences in society. This type of social experience obtained from judicial work still differs from real social reality and truth, showing a continuing lack of understanding of social reality and thereby easily leading to errors in judicial judgment.

During President Weng's tenure, recognizing the flaws arising from recruiting judges through examinations, it was decided to abolish the judicial examination for judges, which was included in the judicial reform schedule and the draft Judges Act, with abolition scheduled for 2007 (Republic of China year 96). Unfortunately, with the departure of the leader, the policy died; subsequently, President Lai Ying-chao never uttered a word about it, and the new President Rai Hau-min has yet to express an intention to do so.

Aside from the issue of cultivation, poor judicial ethics (such as corruption), dereliction of duty (such as arbitrariness, carelessness, and delays), and terrible attitudes (such as scolding and arrogance) are all important issues that judges need to reform. Consequently, terms such as "pacifier judges," "ivory tower judges," and "dinosaur judges" frequently appear in newspapers. If judicial reform fails to make significant progress, how can the public be convinced and trust the judiciary?

"Courts belong to the people" has gradually become widespread and deeply rooted in people's hearts. Former President Weng once made this declaration, and current President Rai has expressed the same sentiment. Since the people are the masters of the court, and professional judges are not doing a good job, the idea of the people—as the masters—participating in trials is also gradually fermenting in the minds of the people of Taiwan.

Systems of public participation in trials mainly fall into two major categories: one is the jury system, mostly adopted by common law countries, and the other is the lay assessor system, adopted by civil law countries such as Germany and France. In recent years, neighboring Asian countries Japan and Korea successively implemented the "Saiban-in (lay assessor) system" and the "lay participation system" in 2009 and 2008, respectively. Our country already completed the "Draft Trial Regulations for Criminal Lay Participation" back in 1994, and the "Draft Trial Regulations for National Lay Assessors" in 2007, showing that the Judicial Yuan is not unfamiliar with systems of public participation in trials and has entered the stage of deliberating whether to adopt them. Today, when Taiwan's judiciary lacks public trust, judicial reform stagnates, and the reputation of the judiciary cannot be salvaged, why doesn't the Judicial Yuan reconsider letting the people—the masters of the court—participate in trials? This should be a panacea to revive the judiciary, rebuild its reputation, and regain public trust. Looking at our close neighbors Japan and Korea, whose judicial reputations far exceed that of our country (at least above ours), both implemented systems of public participation in trials in 2009 and 2008 respectively, why can't our country do the same?!

The newly appointed President of the Judicial Yuan, Rai Hau-min, proposed the concept of implementing a "guiding observation system" (觀審制) even before taking office following his nomination by President Ma. As soon as this was uttered, most legal professionals did not know what a "guiding observation system" was. After taking office, President Lai established the "Deliberation Committee on the Public Guiding Observation System" to evaluate the adoption of the "guiding observation system."

According to a report presented by Lin Chun-yi, Director of the Criminal Department of the Judicial Yuan, at the seminar on "Evaluation of the System of Public Participation in Trials" organized by the Judicial Reform Foundation on March 5, 2011, the main contents of the public guiding observation system are: "(1) People are selected through a certain procedure to serve as guiding observers (觀審員), (2) targeting certain felony cases, (3) guiding observers participate throughout the entire trial procedure of the court of first instance from beginning to end, (4) guiding observers do not participate in voting when the judge makes the judgment conclusion, but can express opinions to provide a reference for the judge when making the judgment." He further believed that the basic functions of the guiding observation system are: "(1) Enhance judicial transparency and promote public understanding of the judiciary, (2) enhance public trust in the judiciary, (3) fulfill the function of legal education" (refer to Director Lin's authored: Feasibility Evaluation Plan for the Public Guiding Observation System), which is evaluated and analyzed as follows:

1. Guiding observers, as the name implies, should observe the trial procedure of the first instance from beginning to end. Stating in the above content that they "participate" in the trial procedure of the first instance is inappropriate. Since guiding observers are neither judges, defendants on trial, witnesses, nor other litigation-related persons, they naturally do not participate in the trial procedure.
2. When a judge makes a judgment, a single judge makes the judgment independently, and a collegiate panel should deliberate and make a judgment based on the deliberation results. Guiding observers are persons who observe the trial, not judges, nor persons who participate in the trial. How can they "express opinions when the judge makes a judgment to provide a reference for the judge when making a judgment"? Expressing opinions during the judge's judgment by a person without adjudication authority amounts to influencing the judge's mental conviction and interfering with the trial, which is a major taboo of judicial independence. Doing so violates Article 80 of the Constitution, which stipulates that "Judges shall be beyond partisan affiliations, shall independently try cases in accordance with the law, free from any interference," thereby raising a constitutional issue.
3. The aforementioned basic function (1) of the guiding observation system—"to enhance judicial transparency and promote public understanding of the judiciary"—is quite bizarre. Under open trial, anyone can observe from the gallery and observe the trial. The trial procedure is transparent to both the defendant and the prosecutor, and any questions or objections can be raised to the judge, leaving no room for lack of transparency. As for how judges try cases, it is also conducted in accordance with the law, with no transparency issues. As for mental convictions and deliberations, they take place before sentencing and are not public by law, so there is no need for transparency. As for cases where the public does not understand litigation procedures, this is a matter of legal education or consulting legal experts, and has nothing to do with whether the quality of judges' trials and judgments is enhanced.
4. Regarding the aforementioned function (2) of the guiding observation system—to enhance public trust in the judiciary—the issue of whether the public has trust in the judiciary and its level is entirely determined by the quality of judges' trials and judgments. Since guiding observers are not judges participating in trials, the quality of trials and the level of public trust in the judiciary have nothing to do with the presence or absence of guiding observers. Therefore, how can the guiding observation system enhance public trust in the judiciary?!
5. Regarding the aforementioned function (3) of the guiding observation system—to fulfill the function of legal education—there are only a certain number of guiding observers per case. Through this whole-process observation of the trial procedure, guiding observers can naturally increase their legal knowledge of trials and have the opportunity to tell relatives and friends about the situation and insights of observing the trial, but its role in fulfilling legal education must be limited. Moreover, promoting legal education is the authority and responsibility of the Ministry of Justice and the Ministry of Education, and the Judicial Yuan has other more important judicial matters it should be responsible for; there is naturally no need to formulate a guiding observation system to fulfill the function of legal education.

From the above, it can be seen that the content of the guiding observation system truly cannot enhance the quality and efficiency of trials; instead, it creates the problem of interfering with trials and violating the constitution. As for the functions it seeks to achieve, not only can it not increase public trust in the judiciary, but it also has nothing to do with judicial transparency, and there is even less need to usurp the role of legal education.

The goal of judicial reform is to enhance public trust in the judiciary, and the establishment of judicial trust relies on high-quality and fair trials. If professional judges cannot achieve this (or fail to meet public expectations), letting the public participate in trials—whether through a jury system or a lay assessor system—is truly a sound policy (at least an approach). Why can developed countries or neighboring Asian countries do it, but our country cannot?!

The author of this book, Attorney Ch'en Wen-lung, has an upright and righteous nature. Since entering practice, he has been enthusiastic about participating in various public welfare activities, frequently providing pro bono defense, and sparing no effort in pursuing the human rights of vulnerable groups and social justice. Early on, he participated in judicial reform activities with unyielding perseverance. At the inception of the Legal Aid Foundation, he was appointed as Secretary-General, fully planning regulations and promoting operations to lay a solid foundation for the Legal Aid Foundation. The Judicial Yuan planned to achieve a branch of the Legal Aid Foundation in every court location within three years, and his team achieved this goal in a year and a half.
After the criminal case of former President Ch'en Shui-bian occurred, he resolutely accepted appointment as defense counsel, becoming one of the main defense lawyers, devoting his heart and soul to fighting for the innocence and rights of the defendant. His fearless, unyielding, and selfless spirit is truly admirable.

Having experienced countless jungle-like close-combat battles in investigations and trials, Attorney Ch'en has experienced firsthand the vicious acts of certain bad prosecutors and judges, feeling deeply moved and pondering how to reform our country's judiciary. He has conducted even more in-depth research and discussion on how to build human rights protection and adhere to legal due process. He believes that for the most core part of judging a defendant—that is, determining the most crucial keys to whether a defendant is guilty or innocent—decisions must be made by a jury composed of jurors representing the people, which aligns with the principle of fairness and justice. Only then will the judiciary not be monopolized or arbitrarily decided by a single (one) or a minority (three or five) professional judges, nor will it be interfered with by political forces, making it more acceptable and trusted by defendants and the public.

After studying the jury systems of various European and American countries, Attorney Ch'en deeply feels that for major criminal cases, our country should adopt a jury system so that the human rights and other rights of defendants can be protected, and the judiciary can achieve significant reform. He resolutely wrote this book and actively promotes the jury system.

With an accessible, concise, and easy-to-understand writing style, this book introduces the evolution and operation of the jury systems in Britain and the United States, as well as how juries achieve fair verdicts. Furthermore, it critiques the serious deficiencies in the current operation of Taiwan's judiciary (investigations and trials), and deeply elaborates on the necessity and feasibility of implementing a jury system in Taiwan.

Under the realization shared by the public and the Judicial Yuan that "Justice belongs to the people, and the courts belong to the people," and driven by the civic consciousness of popular participation in trials, this book is truly a rare and essential reference work for our citizens to understand the jury system and further contemplate whether to adopt a jury system.

※ This article serves as the recommendation preface for the book *The Jury: The Trial System Where the People Run the Country*, authored by Attorney Ch'en Wen-lung. Book Introduction: *The Jury: The Trial System Where the People Run the Country*, Author: Ch'en Wen-lung, Publisher: Avant-Garde Publishing House, Publication Date: April 2011