General Explanation of the Citizens' Draft Amendments to the Additional Articles of the Constitution (1999)

To promote judicial reform, the Judicial Reform Foundation specially invited scholars, experts, and attorneys to propose explanations and constitutional amendment articles regarding the judicial system and criminal human rights under the Constitution, as follows:

I. Judicial System Reform

1. Judges Shall Not Join Political Parties

To ensure judicial independence and enable judges to transcend partisan politics, it has become a civic consensus that judges shall not join political parties. The Judicial Yuan had previously studied incorporating this explicitly into the Judges Act; this Association believes it should be added as an amendment to the Constitution.

2. Abolish the Judicial Yuan as a Judicial Administration Organ, Transforming It into a Supreme Court Exercising Judicial Power and a Constitutional Court Exercising Constitutional Review Power

Judicial administration should exist solely to support the exercise of judicial power and should not override judicial adjudication. Therefore, our draft amendments advocate for establishing a judicial administration system centered on judicial power. Consequently, the Judicial Yuan, which operates as a judicial administration organ, should be abolished and replaced by a Supreme Court that exercises judicial power. The power of constitutional review shall be independently exercised by a Constitutional Court. To meet the needs of the times, the jurisdiction of the Constitutional Court shall be adjusted to include: jurisdictional disputes between central government organs; jurisdictional disputes between central and local governments; constitutional reviews of state organs infringing upon human rights or citizens' rights; trials on the unconstitutional dissolution of political parties; and other matters prescribed by the Constitution or laws.

3. Strengthen the Spirit of Judicial Self-Governance; the President of the Constitutional Court Shall Also Be Elected by and among the Judges of the Constitutional Court.

To emphasize the spirit of judicial self-governance, this draft amendment advocates that the organization of the Constitutional Court, the Supreme Court, and all courts subordinate thereto shall be prescribed by law based on the spirit of judicial self-governance. Furthermore, to prevent excessive political interference in the selection of the President of the Constitutional Court, it is explicitly stipulated that the President of the Constitutional Court shall also be elected by and among the judges of the Constitutional Court.

4. Elevate and Streamline the Subordination and Hierarchy of the Prosecution Offices (Procuratorates), Explicitly Stipulate the Method of Appointment and Term of Office for the Prosecutor-General and Chief Prosecutors, and Establish a Personnel Review Committee for the Supreme Prosecutor's Office

According to our current Court Organization Act, prosecution offices at all levels are respectively stationed at courts of corresponding levels, with the Ministry of Justice serving as the highest administrative supervisory organ. The Prosecutor-General and the chief prosecutors of prosecution offices at all levels are appointed by the Minister of Justice, with no term limits. This design is no different from the appointment method of ordinary administrative officials. Since both the Prosecutor-General and chief prosecutors are constrained by the appointment power of the Minister of Justice, they inevitably dance to the tune of the Minister. Moreover, because the appointment process requires no supervision or consent from any organ, it is difficult to avoid the Minister of Justice promoting political allies to chief prosecutor positions in order to achieve the objective of restraining prosecutorial functions through the principle of prosecutorial unity. Therefore, the current system not only fails to highlight the independence of the prosecution system, but also makes it exceedingly difficult to expect prosecutors to truly exercise their powers without fear of political privileges.

To rectify this at the root, this Act explicitly stipulates that the Supreme Prosecutor's Office shall be the highest organ of the prosecution system, directly subordinate to the Executive Yuan, and simplified into a two-tier system consisting only of the Supreme Prosecutor's Office and local prosecution offices, thereby eliminating the currently dysfunctional High Prosecution Offices to streamline and fulfill the functions of prosecution offices. The Prosecutor-General shall be nominated by the Premier, appointed with the consent of the Legislative Yuan, and serve a fixed term. Only by subjecting the appointment of the Prosecutor-General to public opinion oversight can the prosecution system be kept free from administrative interference and allowed to independently exercise its powers.

II. Basic Human Rights in Criminal Procedures

1. The Necessity of Incorporating Basic Criminal Human Rights into the Constitution

The Code of Criminal Procedure is procedural law governing the state's exercise of its penal power. Because it involves the deprivation of citizens' freedom, life, property, etc., it must have a constitutional basis. Important basic human rights such as personal freedom, freedom of residence, and property rights can only receive adequate protection when explicitly prescribed in the Constitution and concretely practiced through criminal litigation. Therefore, the Constitution and the Code of Criminal Procedure share an extremely close relationship; the Code of Criminal Procedure is the "applied Constitution," and the provisions of criminal procedures serve precisely as an indicator of constitutional protection for basic human rights. This is the rationale.

However, for a long time, because the provisions concerning basic criminal human rights in our Constitution have been overly abstract and rudimentary, they have not only limited the development of the criminal procedure system but also caused numerous human rights-infringing abuses in practical operation. Based on the requirements of the Universal Declaration of Human Rights, referencing the provisions of countries such as the United States and Japan that incorporate basic criminal human rights into their constitutions, and reflecting upon the direction of our constitutional reform and the shortcomings in the operation of criminal procedures, we are deeply convinced that explicitly incorporating basic criminal human rights into the text of our Constitution holds vital significance and value. Specifically:

(1) Requirements of the Universal Declaration of Human Rights

The Universal Declaration of Human Rights, adopted by the United Nations General Assembly in 1948, set forth the principle of legality (nullum crimen, nulla poena sine lege), the principle of the presumption of innocence, the right to a public and fair trial, and freedom from arbitrary arrest and detention with regard to the protection of personal liberty. The International Covenant on Civil and Political Rights, adopted in 1966, further established numerous explicit minimum guarantees regarding the litigation and defense rights of criminal defendants. Although our country signed this human rights instrument in 1967, following our withdrawal from the United Nations, we have yet to domesticate the relevant human rights provisions. Last year (1998) marked the 50th anniversary of the promulgation of the Universal Declaration of Human Rights, yet our country's various human rights indicators generally fall below passing grades, and criminal justice human rights have regressed instead of progressing. Under the universal principles of basic human rights, human rights indicators have become the basis for evaluating a nation's level of civilization and rule of law. To respect the ideals of the Universal Declaration of Human Rights in protecting personal liberty and to catch up with the minimum requirements set by the International Covenant on Civil and Political Rights, explicitly and concretely prescribing basic criminal human rights within the text of our Constitution is an urgent task that brooks no delay.

(2) Perspectives from Comparative Constitutional Law

Modern constitutionalist constitutions mostly establish clear norms regarding the protection of criminal procedures. Taking the United States and Japan as examples, in the amendments to the United States Constitution, besides general provisions on "due process of law" in the Fifth and Fourteenth Amendments, there are provisions protecting the right against unreasonable searches and seizures (Fourth Amendment); guarantees of indictment by a grand jury, prohibition of double jeopardy, and the privilege against self-incrimination (Fifth Amendment); the right to a speedy and public trial by an impartial jury, the right to be informed of the nature and cause of the accusation, to be confronted with witnesses, to have compulsory processes for obtaining witnesses in one's favor, and to have the assistance of counsel for one's defense (Sixth Amendment); and the prohibition of cruel and unusual punishments (Eighth Amendment)—all of which are concrete provisions related to the protection of personal liberty in criminal procedures.

Following World War II, Japan established even more detailed and concrete provisions regarding the protection of basic human rights in criminal procedures. Ten articles of its Constitution, from Article 31 to Article 40, account for nearly one-tenth of the total number of constitutional articles. Article 31 first proclaims the protection of due process of law. In addition, provisions concerning so-called compulsory measures such as freedom from illegal arrest, detention, search, and seizure (Articles 33 to 35); the right to select counsel (Articles 34 and 37, Paragraph 3); the right to a fair, speedy, and public trial (Article 37, Paragraph 1); the right to examine witnesses and request the summoning of witnesses (Article 37, Paragraph 2); the right to silence, the confession rule, and the corroboration evidence rule (Article 38); the prohibition of retroactive punishment and double jeopardy (Article 39); and compensation for wrongful imprisonment (Article 40)—all directly and explicitly stipulate the protection of many important rights for criminal suspects and defendants in criminal procedures.

This is not only true for the United States and Japan; recently, whether belonging to the common law or civil law legal systems, countries undertaking constitutional amendments or re-drafting constitutions have also largely tended to enshrine basic criminal human rights directly, in detail, and concretely within constitutional texts. Examples include the Constitution of the Republic of the Philippines enacted and promulgated in 1987 and the Spanish Constitution of 1978. In contrast, our Constitution merely provides relatively abstract provisions such as the protection of personal liberty in Article 8, the principle of exemption from military trial in Article 9, freedom of residence in Article 10, and the right of litigation in Article 16. Compared with the constitutional provisions of the aforementioned countries, ours appear far too rudimentary. Since human rights indicators serve as the basis for evaluating a nation's level of civilization and rule of law, our country truly has the necessity to directly incorporate basic criminal human rights into the Constitution with detailed provisions.

Particularly given the current reality—where our judicial credibility is severely questioned due to torture to extract confessions during investigation practices and sloppy evidence collection and fact-finding during trial stages—the issue of human rights protection must never remain mere slogans. We have even more sufficient reasons and necessity to actively enrich the constitutional protection of basic criminal human rights.

(3) Aligning with the Grand Design of Our Constitutional Reform

Ideologically, human rights protection is rooted in liberalism, while popular sovereignty is the essence of democracy. Viewed through the history of constitutional evolution, the development and maturity of democracy must rest upon the cornerstone of liberalism; therefore, human rights protection and popular sovereignty are inextricably linked. Following the lifting of martial law and undergoing several constitutional amendments, our country's democratic reform has made substantial progress. To safeguard this democratic fruit of a silent revolution, correct the public's regard for basic human rights protection, establish the principle of individual dignity, and elevate the level of the rule of law are essential milestones for the next stage of constitutional reform. The foremost task among these is the constitutionalization of basic criminal human rights—this is a declaration of moving away from being a human rights-lagging nation toward the 21st century, and it perfectly aligns with the grand design of our constitutional reform.

(4) The Limits of Constitutional Interpretation in Protecting Basic Criminal Human Rights

Admittedly, even if constitutional provisions protecting basic criminal human rights are overly abstract or insufficient, one can still hope to fulfill human rights protection functions through constitutional interpretations by the Council of Grand Justices of the Judicial Yuan. For instance, Interpretations No. 384 and No. 392 concerning personal liberty and due process of law prompted major revisions to the Statute for the Punishment of Hoodlums and the Code of Criminal Procedure, demonstrating that human rights interpretation has virtually become the mainstream of our constitutional interpretation. Constitutional interpretation has achieved remarkably important results in establishing the core value of human dignity and consolidating the development of democracy through human rights protection, which is commendable. However, the concrete connotation of so-called due process of law remains controversial in interpretation, which to some extent limits the scope and depth of constitutional interpretation, lacking the direct legitimacy and normative effect of explicit constitutional provisions protecting basic criminal human rights. Moreover, with explicit constitutional provisions, trial practice can dispense with applying for constitutional interpretation and relying on abstract statutory reviews by the Council of Grand Justices; instead, based on the intent of constitutional provisions, it can appropriately interpret and apply the law to individual cases, thereby more effectively protecting citizens' rights to personal liberty. In other words, while constitutional interpretations by the Council of Grand Justices can remedy deficiencies in constitutional provisions protecting human rights, they still have their limits. Consequently, directly protecting basic criminal human rights within the Constitution is the fundamental path.

(5) Reflections on Human Rights-Infringing Conditions

In our country, there are still many legal provisions left over from the long-standing martial law regime that ignore procedural justice, stack redundant administrative layers, and impose harsh punishments. The administrative and legislative branches have not shown any elevation in their concepts of respecting human rights and procedural justice. In particular, the provisions of the current Code of Criminal Procedure place excessive emphasis on discovering substantive truth and the doctrine of mandatory punishment for criminals, while failing to sufficiently account for the procedural protection of defendants' rights. As a result, incidents of human rights violations during investigations are frequently heard of. Furthermore, because the principle of a single indictment paper (charging document) has not been adopted, the psychological impressions of investigation and trial are linked, causing judges to form preconceived biases against cases even before attending trial. The courts, which ought to shoulder the responsibility of fair judicial review, also ignore the protection of criminal defendants' defense rights under a mindset that values ex officio investigation to actively discover the truth. It can be seen that the scarcity of provisions protecting human rights in criminal procedures is the primary cause of citizens' personal liberty and other rights suffering improper or illegal infringements by state power. Based on this reflection, our country indeed needs to concretely prescribe provisions in the Code of Criminal Procedure protecting the litigation rights and defense rights of criminal suspects and defendants, and the legal source thereof relies upon the Constitution explicitly regulating basic criminal human rights.
In short, under circumstances where domestic human rights protection provisions are insufficient, to accelerate the reform of the criminal procedure system and prevent abuses that infringe upon human rights, we should reference the International Covenant on Civil and Political Rights and the constitutional provisions of countries such as the United States and Japan. We must promptly and clearly incorporate basic criminal human rights into the text of the Constitution, including guarantees of due process clauses, the principle of the presumption of innocence, warrant-based protection, the right to silence, the right to select counsel, the right to cross-examine and summon witnesses, the exclusionary rule for illegally obtained evidence, and the prohibition of double jeopardy.

2. Principles and Structure of Amendments and Additions

(1) Incorporating the Due Process Clause as a Guiding Principle to Proclaim the Spirit of Constitutional Protection for Basic Criminal Human Rights

1. Establish a general provision for the due process clause (Article 12), and under this guiding philosophy, stipulate the warrant requirement that compulsory measures infringing upon citizens' basic rights and interests must undergo judicial review by a court (Article 13 stipulates the protection of personal liberty through court review; Article 14 stipulates the protection of freedom of residence and secrecy of communications through court review). Paragraph 1 of Article 15 stipulates the prohibition of double punishment, while Paragraph 2 of the same article prescribes the exclusionary effect of evidence obtained in violation of due process of law. Paragraph 1 of Article 16 establishes the principle of the presumption of innocence.
2. The text appropriately employs abstract and declarative phrasing to grant interpretive space to the constitutional interpretation organ. For example, the phrase "Except in accordance with due process of law, no person shall be deprived of... the life of the people" added in Article 12, Paragraph 1 does not mean the Constitution directly affirms that the death penalty system is constitutional; whether the death penalty system is unconstitutional must still be interpreted based on whether the death penalty complies with "due" legal procedures and the provisions of Article 15 of the main text of the Constitution protecting people's right to survival. Furthermore, whether "other punishments" in the same paragraph and section includes the deprivation or restriction of property rights shall likewise be interpreted by the constitutional interpretation organ with reference to the property rights protection provisions in Article 15 of the main text of the Constitution. As for the use of terms such as "arrest, detention... punishment" in the second paragraph of the same article, one need not rigidly adhere to literal meanings at the expense of intent; at the constitutional level, it can be interpreted broadly to encompass novel types of compulsory measures that may infringe upon citizens' personal liberty or privacy rights in the future. In addition, whether illegally obtained evidence should be excluded still depends on a relative interpretation of whether failing to exclude such evidence would violate "due process of law."
3. Provisions protecting basic human rights in the Constitution are neither mutually exclusive nor monopolistic. The addition of provisions on basic criminal human rights aims to afford criminal suspects or defendants more adequate protection of their defense rights and interests. Should any provisions be omitted, interpretation may still rely on the due process clause of the general provisions or relevant rights provisions of the main text of the Constitution for protection. Should there be concurrent human rights protection overlaps with other provisions, no conflict or obstruction will arise.

(2) Adding Article 16, Paragraph 2 to Concretely Stipulate the Defense and Litigation Rights and Interests Enjoyed by Criminal Defendants, in Order to Implement the Principle of the Presumption of Innocence

1. Based on reflections upon human rights-infringing conditions in our criminal procedures, institutions and rights indispensable for restricting the infringement upon the personal liberty of criminal suspects or defendants to the absolute minimum in criminal procedures must be constitutionalized. Simultaneously referencing the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and foreign constitutional structures, it is stipulated that criminal defendants shall enjoy concrete defense or litigation rights and interests such as the right to be informed and the opportunity to defend oneself, the right to silence, the selection of counsel, and confrontation and cross-examination of witnesses, thereby fulfilling the principle of the presumption of innocence.
2. The necessity of elevating the defense and litigation rights and interests of criminal defendants to the constitutional level: First, it highlights the importance of basic criminal human rights, complying with the universal requirements of basic human rights protection under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Second, although our current Code of Criminal Procedure already contains provisions regarding the right to select counsel and the right to silence, out of considerations for investigative efficiency and discovering the truth, it also sets forth fairly lenient restrictive or prohibitive proviso clauses. In practice, violations of the duty to inform, refusals of access to and presence of counsel, and other infringements upon the aforementioned rights are not uncommon. This is closely related to treating the aforementioned rights of criminal defendants merely as rights under the Code of Criminal Procedure rather than protections at the constitutional level. Constitutionalizing these rights can not only rectify the mindset in investigation and trial practices that ignores criminal defendants' defense rights, but also prompt legislators, when enacting substantive or procedural criminal laws, to genuinely respect and embody the intent of the Constitution to protect basic criminal human rights, thereby avoiding the risk of unconstitutional legislation. Third, while current constitutional provisions protecting basic criminal human rights are overly abstract or insufficient, one can hope to play a human rights protection role through constitutional interpretations by the Council of Grand Justices. However, this lacks the normative effect of direct constitutional enshrinement. Through the constitutionalization of these concrete rights, the scope and depth of constitutional review of statutes by the Council of Grand Justices can be enhanced. Fourth, after constitutionalization, courts of the first, second, and third instances will be able to directly invoke constitutional provisions—without awaiting applications for constitutional interpretation and relying on abstract statutory reviews by the Council of Grand Justices—to make appropriate judgments regarding "unconstitutional application" in individual cases, thereby more effectively protecting citizens' rights to personal liberty.

(3) Protection of Victims' Rights and Interests

In criminal procedures, the protection of human rights for both victims and defendants is equally important. Protecting a defendant's human rights does not mean slighting the victim's interests; the protection of both can proceed in parallel without contradiction. That is, while emphasizing the protection of a defendant's human rights, the position and rights of the victim naturally must also be accommodated. However, viewed from the historical evolution of human rights and the perspective of comparative constitutional law, basic human rights traditionally protected by the Constitution are freedom rights and interests that shield people from improper infringements by state public power, possessing the nature of negative defensive rights. Because individuals implicated in criminal procedures may suffer improper infringements by state power, it is necessary to constitutionalize so-called basic criminal human rights. As for crime victims, no issue of infringement by state public power exists for them in criminal procedures; furthermore, because they possess the status of complainants or private prosecutors, they are entitled to pursue the defendant to satisfy their victimization. Consequently, rare is the constitutional structure worldwide that explicitly regulates the protection of victims. Therefore, the protection of crime victims is adequately left to legislative enactments such as the Crime Victim Protection Act and the Witness Protection Act.

Attachment

Opinions on the Citizens' Draft Amendments to the Constitution (1999)