Switching Tracks and Making Turns: Proceed with Caution

Regarding the draft amendments to Articles 161 and 163 of the Code of Criminal Procedure, not only were opinions divided among cross-party legislators, but the stances of the Judicial Yuan and the Ministry of Justice were also diametrically opposed. Academia and the legal profession engaged in a war of words from afar, seemingly continuing the flames of war from the 1999 National Conference on Judicial Reform. The judicial landscape appeared turbulent and unstable, with some hastily calling for the judiciary, prosecution, defense, and academia to jointly form a Judicial Stability Alliance to deliberate on the grand plan for judicial reform. Eventually, it even alarmed the President to step in and coordinate. With much difficulty, the three branches reached a consensus, in principle supporting the first-reading amendment bill for Articles 161 and 163, but adding supplementary measures for the deferred prosecution system, and using a sunset clause to mitigate the impact of the new system on judicial practice. During cross-party negotiations, the opposition party still raised objections regarding whether the supplementary provisions that had not undergone first-reading review could be directly submitted to the second reading, adding frequent variables to whether legislation could be completed within the current session. Before the legislation was even completed, it was reported in the press that Minister of Justice Ch'en Ting-nan had closed the doors for a review, blaming the Ministry of Justice's congressional liaison as inferior to the Judicial Yuan's and claiming that this battle was a crushing defeat, among other remarks.

Although the Ministry of Justice expressed great dissatisfaction with the Judicial Yuan's legislative strategy of "making a breakthrough at a single point" and "getting the head through to get the body through," and legislators even ridiculed Articles 161 and 163 as unserviceable international assembled vehicles, before a much-anticipated policy debate could even unfold, both sides compromised, made concessions, and shook hands in reconciliation. That's all for tonight, folks. While this outcome may prove to be a correct decision in the future, we have indeed missed an opportunity to verify the legitimacy and rationality of judicial policy-making.

Some believe that this battle by the Ministry of Justice was merely a cornered beast's last stand. Ever since Judicial Yuan Interpretation No. 392 declared the provisions granting prosecutors the power of detention unconstitutional, the legislative amendment of the search power to adopt a judge-preservation system, and the successive pilot implementations of cross-examination in criminal trials by the Shihlin, Miaoli, and Taipei District Courts... the reform of the entire criminal procedure system seems to be stepping step-by-step toward the so-called adversary system, and I am afraid this is a point of no return. Viewed from the historical context where the Ministry of Justice consistently fought a lonely battle in the numerous criminal procedure reform issues during the National Conference on Judicial Reform, regardless of whether the amendments to Articles 161 and 163 come with supplementary legislation, the momentum of the situation makes this trend difficult to reverse. The objections raised by the Ministry of Justice actually have a considerable logical foundation, but why is it that no matter how reasonable the arguments are, they cannot get through? Is this trend a blind current? Is such a reform truly a reckless change? Why did these two mere provisions become the decisive battleground for a battle of doctrines? Such complex problems truly cannot be answered simply. Some say that in this great judicial reform battle, prosecutors lost armor and abandoned weapons all the way, retreating step by step, which is difficult to agree with. Judicial reform is not a role-playing competition, and there is no issue of winning or losing. Regardless of whether the supplementary measures proposed by the Ministry of Justice can be legislated together, at the very least, this inter-branch dispute has effectively integrated official policies through presidential coordination, which is already commendable. This train of judicial reform appears as if the Judicial Yuan is stepping on the accelerator while the Ministry of Justice is stepping on the brakes. Although this slowed down the train, at such a major institutional turning point, who would dare to keep stepping on the gas without regard for braking and slowing down? Admittedly, analyzed from the realistic perspective of power distribution and labor sharing, the pressure plate of the entire criminal procedure investigation shows a phenomenon of shifting toward the prosecution. More accurately, however, such pressure is also pushed down onto the police and investigative agencies, which can be seen from the clues in recent Justice Interpretation No. 535 regarding the constitutionality of police stop-and-frisk methods and the implementation of the case registration review system. The intent of such a reform direction is not to reduce the investigative responsibility of judges (even though it factually has the effect of reducing the judges' workload), but rather to strengthen the system of burden-of-proof allocation, enabling frontline police and investigative personnel engaged in criminal investigation to improve their case-handling habits earlier, ensuring the "timeliness" of criminal investigations and preventing them from falling into the vicious cycle of repeated case investigations. Such reforms will not only prompt prosecutors to indict with caution but also improve the case-handling efficiency of police and investigators, while relatively increasing the accuracy rate of public prosecutions, thereby avoiding false accusations and miscarriages of justice. How can the Ministry of Justice be said to have suffered a crushing defeat?

In fact, as the reform of the Code of Criminal Procedure moves toward an adversary system, theoretical rights and wrongs allow for diverse opinions, but in terms of real interests, it is likely to bring joy to one party (judges) and sorrow to two (prosecutors and lawyers). Some are puzzled as to why the legal profession so generously supports the adversary system. Cross-examination in criminal trials is regarded as one of the important manifestations of the adversary system (still controversial in theory), and analyzing the effectiveness of the pilot programs in the Shihlin, Miaoli, and Taipei District Courts, the prosecution has substantially increased applications for summary orders in criminal cases to compress the number of public prosecution cases subject to ordinary procedures, ensuring that the human resources of prosecutors dedicated to court attendance are sufficient to cope. It is said that public prosecution cases in the Shihlin District Court have dropped to below 10 percent, while the Taipei District Court saw public prosecution cases plummet from one to two thousand per month before the implementation of cross-examination in June this year to just over two hundred per month after implementation. Such fluctuations in case volume reveal that criminal lawyers' business is at risk of shrinking correspondingly (the pie has become smaller). If criminal cases applying cross-examination do not adopt supplementary measures such as mandatory defense by lawyers and publicly appointed mandatory defense in the future, the competitive market for criminal cases will become even more intense, and fee standards may well rise accordingly, which will be the next wave of reform issues we must face. Although the amendment of criminal procedure toward the adversary system (termed by the Judicial Yuan as a modified adversary system) is not entirely advantageous to lawyers, the majority of the legal profession supports the Judicial Yuan's reform plan, perhaps because observations of cross-examination experiences show that this system can indeed effectively promote the court's image of judicial neutrality and help enhance public trust in the courts.

The amendment to Articles 161 and 163 of the Code of Criminal Procedure is a key surgery replacing the beams and pillars of the current criminal procedure system, and the legislative principles of our Code of Criminal Procedure also face unprecedented challenges. The arduous struggles in the process of "changing doctrines and switching tracks" could have been foreseen long ago. To make such drastic changes, having the momentum of reform alone is not enough; perhaps we should humbly reflect on our still-insufficient cognition and experience. Therefore, when switching tracks and making turns, we must proceed with caution to avoid overturning the vehicle. After all, rushing recklessly even with the right direction may still lead to failure. While a sunset clause may look like a result of compromise, it nonetheless provides us with sufficient time to safely turn toward the correct direction of reform.

※ Published in: China Times