Make Judges Act Like Judges and Prosecutors Act Like Prosecutors! Statement on the Controversy Surrounding the Amendment to Articles 161 and 163 of the Code of Criminal Procedure

In recent days, the Judicial Yuan and the Ministry of Justice have been at odds over the draft amendments to Articles 161 and 163 of the Code of Criminal Procedure. After passing the first reading in the Legislative Yuan, the amendment was overturned by the DPP caucus, plunging the reform into a stalemate once again. From the perspective of grassroots judicial reform, our Foundation issues the following statement:

1. Make Judges Act Like Judges and Prosecutors Act Like Prosecutors

   Returning to the fundamental principles of criminal adjudication, the judicial pursuit of truth should be achieved through the respective duties performed by the judge, prosecutor, and defense counsel. Conversely, in current Taiwanese criminal litigation practice, judges simultaneously play the roles of adjudicators and inquisitors, often forced to act as prosecutors in the courtroom—particularly when prosecutors fail to appear at hearings altogether. Even though Taipei and Miaoli have recently begun pilot programs requiring prosecutors to attend hearings throughout the entire trial, we remain a far cry from universal prosecutor attendance, resulting in discriminatory treatment where citizens are subjected to disparate trial procedures.

   The proposed amendment returns the burden of proof to the prosecutor, enabling the judge to become an impartial adjudicator and putting an end to the confusion of roles within the courtroom.

2. Return the Burden of Proof to the Prosecution and Confront the Shortage of Prosecutors

   During the legislative review of these amendments, the Ministry of Justice and certain legislators have repeatedly emphasized the need for "complementary measures." However, the most significant impact of these two revised articles on the judicial system is actually returning the burden of proof to the prosecution—meaning prosecutors will replace the currently unreasonable practice of judges investigating evidence and truly assume the role of prosecutors in court. The challenge is that as the burden of proof shifts back to the prosecution, a corresponding increase in workload is inevitable, and the current staffing levels of prosecutors are indeed inadequate to meet this demand. Therefore, the solution is to determine the necessary manpower for prosecutors and establish a sunset clause stipulating that the amendment will be implemented as soon as the proportion of prosecutorial staff reaches a specific threshold. Considering the substantial increase in personnel recruited through this year's Judges and Prosecutors Training Institute, if next year's recruitment continues accordingly, achieving the implementation of this article within a year or two should be entirely feasible.

3. Enhance the Investigative Capacities of Police and Investigation Agencies through the Allocation of the Burden of Proof

   Once the amendment returns the burden of proof to prosecutors, prosecutors must substantially improve their evidence-investigation capabilities. Driven by this demand, the police and the Investigation Bureau—who assist prosecutors with investigations—will likewise be compelled to strengthen their investigative skills to satisfy the court's requirements. Such a virtuous cycle will enhance the investigative capacities of police and investigation agencies and fortify the future investigation of criminal evidence.

4. A Prosecutorial Indictment Oversight Mechanism to Prevent Abusive Prosecutions

   A major problem in current criminal litigation practice is abusive prosecution; the low conviction rate following indictment clearly demonstrates the indiscriminate nature of prosecutorial indictments. The consequence of abusive prosecution subjects citizens to the distress of being charged, and even an acquittal often fails to redress the trauma and injury they have suffered. The amendment to Article 161 empowers judges to determine whether the prosecutor's evidence has reached the threshold required for indictment, thereby preventing indiscriminate cases and safeguarding citizens from remaining in a state of legal uncertainty.

5. Confront Social Needs and Abandon Departmentalism

   Entangled in long-standing grievances, the Judicial Yuan and the Ministry of Justice have fallen into a nearly emotional opposition regarding their stances on the amendments. Civil society organizations particularly urge that the introduction of these two article amendments is a necessary response to the chronic underperformance of prosecutors—where they fail even to attend court hearings. What we urgently need is a court where judges act like judges, prosecutors act like prosecutors, one party bears the burden of proof, and another adjudicates. We must not disregard society's genuine needs out of concern for workload or responsibility. Whether complementary measures are needed or a sunset clause is established, both must use concrete substance to persuade the public rather than utilizing abstract auxiliary measures as an excuse to delay reform, thereby reconstructing a litigation system that meets public expectations!