Holding Fast to the Core Principles of "Human Rights" and "The People": Three Expectations for the National Conference on Judicial Reform

This Conference on Judicial Reform proudly champions the establishment of a judiciary for all that protects fundamental human rights, and even cites international human rights standards. This is a core principle that must be firmly grasped.

There is currently an inexplicable surge of deep grievances filling society, one that can no longer be resolved by relying on the application of harsh penalties in troubled times. From the perspective of human rights and the rule of law, the reason this grievance is "inexplicable" is the result of two factors interacting with each other. The first factor is that citizens' awareness of human rights is weak and narrow; those who violate human rights often do not realize they are doing so, while those whose human rights are violated do not know how to understand the fact of their violation through the lens of human rights. The second factor is the law, which ought to be the "last line of defense" for protecting human rights. Many current laws are either crude (for example, the principle of the presumption of innocence still needs to be firmly established and implemented) or outdated (for example, Outlaws of the Marsh-style "Regulations Governing the Suppression of Bandits" are still holding sway), and their enforcement is fraught with discrimination (ranging from penalties not applying to the "grandees" at the top, to those in the middle exploiting loopholes). To the general public, the law is absolutely an "alienated" existence—far beyond what President Lee recently described at the National Assembly as "consistently failing to satisfy the people.">

Although establishing a judiciary for all that protects fundamental human rights is a fundamental approach to addressing the root causes of the problem, this endeavor can by no means be accomplished in a three-day conference. Moreover, it is difficult to predict the outcome of the final compromise given that several participating factions have already formed voting blocs driven by their own "isms." Regardless, since basic human rights and a judiciary for all are set as the guiding goals, we expect the participants to pay special attention to the following three issues.

The foundational education of legal professionals (judges, prosecutors, lawyers) and police officers must include human rights courses.

Aside from being part of constitutional law courses, domestic research and education on human rights are virtually a vacuum. (According to a study supported by the National Science Council, the seven largest libraries in the country contain only 162 "entries" of Chinese-language human rights information, and to date there is still no compilation of international human rights law in the country.) To talk glibly about protecting human rights with such a weak foundation of knowledge and information is undoubtedly a bizarre phenomenon in this post-war "era of human rights." We recommend that human rights-related courses be offered in university law departments, the Judges and Prosecutors Training Institute, and the police academy. First, this would allow human rights values and normative considerations to occupy a place within the discretionary space of judicial personnel when performing their duties. Second, it could also take the opportunity to turn these training institutions into locomotives for promoting human rights education for all.

Thoroughly Amend the Code of Criminal Procedure

Regardless of whether the final trial result is innocence or guilt, the frontline experience of going through the judicial process plays a decisive role in shaping the public's understanding of and attitude toward human rights law—especially regarding attitudes during litigation (we must not forget that the impact extends beyond the parties involved to their friends and relatives). According to a study recently published by the Taiwan Association for Human Rights (TAHR), when measured against international human rights standards (which are minimum rather than maximum standards), the Code of Criminal Procedure still suffers from many flaws, particularly in the "upstream" "pre-trial" phase. If the procedures of the Code of Criminal Procedure can be sound, they will in themselves constitute excellent positive human rights education, helping to alleviate and clarify the aforementioned inexplicable surge of deep grievances.

Establish a Legal Aid System

Taiwanese citizens who cannot afford a lawyer constitute one of the largest vulnerable communities. For these citizens, the current Public Defender Act and relevant provisions of the Criminal Code are effectively a dead letter. If this problem is not resolved, how can there be a judiciary for "all"? And how can we safeguard human rights clearly stipulated by both the Constitution and international human rights standards? We advocate for legal amendments: First, to give low-income litigants the right to choose defense counsel without having to apply, along with the right to be so informed; second, the criteria for whether one has this right should include not only economic capacity and the length of the sentence, but also the complexity of the case and the severity of the charge; third, this right should apply starting from the investigation stage.

Many people have already said: This Conference on Judicial Reform is neither the first nor the last. We believe that only by treating the above three issues seriously will the judicial reform axis of "the people" and "human rights" avoid going off the rails, and only then can other medium- and long-term reforms fall into their proper places.