Justice Cannot Be Faked, Prosecutors Must Attend Hearings Earnestly: Public Mobilization for Judicial Reform - "Public Voice Series"

Although the Second Division of the National Judicial Reform Conference sparked intense controversy over whether the Code of Criminal Procedure should be amended toward an adversarial system, there is no controversy—regardless of which system is adopted—that prosecutors must attend court hearings to engage in substantive debate regarding whether a defendant's crime is established. Moreover, according to press reports, the Ministry of Justice has issued a circular to prosecutors at all first- and second-instance levels nationwide, mandating full-hearing attendance for nine major types of serious criminal cases starting July 1 of this year, and requiring that for first-instance cases, the prosecutor who originally indicted the case must in principle attend in person. The Ministry of Justice held a press conference boasting this as one of its "innovative measures," and some media outlets even labeled it a "new policy."

"Attending the hearing" simply means "appearing in court." Article 280 of the Code of Criminal Procedure stipulates that prosecutors shall "appear in court" on trial dates. In addition to stating the gist of the indictment upon appearance, after the investigation of evidence is concluded, the judge shall order the prosecutor, the defendant, and the defense counsel to debate the facts and the law (see Articles 286 and 289 of the same Code). Prosecutors are public prosecutors and should appear in court to present evidence and arguments for the cases they indict; the existing system is already designed this way and has nothing to do with any debate over legal systems. However, because practitioners have long failed to implement and enforce prosecutors' duty to appear in court, either neglecting to appear or treating court appearances as mere perfunctory formalities by prosecutors on rotation, the spirit of debate has been reduced to a hollow shell—a subject of long-standing criticism. Yet today, the Ministry of Justice presents this as a new policy, which is absurd. Furthermore, during the tenure of former Minister of Justice Liao Cheng-hao (廖正豪), in response to calls from civil society groups, the Ministry had already publicly promised to implement full-hearing attendance for major cases. Years have passed, and the Ministry of Justice has essentially returned to square one. By proclaiming this "new policy," the Ministry is effectively announcing that former Minister Liao Cheng-hao's promise was broken, demonstrating that the Ministry has always found this issue easier said than done. Will today's "new policy" worryingly end up as tomorrow's "leftovers"? Will it be yet another performance of making light promises and breaking faith? Such skepticism is not without reason. This time, the Ministry of Justice has failed to explain why former Minister Liao Cheng-hao's commitment fell through, and during this period, prosecutors' workloads have increased rather than decreased, making the situation even worse than it was during Minister Liao's era. It is unclear what reason there is to believe that under conditions where prosecutors' workloads remain unmitigated, what could not be done before can suddenly be accomplished now. Whether the Ministry of Justice's "new policy" can ultimately be promoted remains worth continuous monitoring, especially regarding the effectiveness of prosecutors' court appearances and whether "full-term" attendance is genuinely achieved; the courts and bar associations should track and supervise this.

For a long time, criminal trial practice has devolved into bureaucratization and formalism, which is likely one of the reasons why the public distrusts the judiciary. Legal terminology used in the courtroom, such as "attending the hearing," "ordering a return," and "notifying," exudes an old-style bureaucratic demeanor. Furthermore, judges arbitrarily neglect the solemnity of procedures, going through the motions and fostering a culture of falsification, which instead destroys judicial dignity. When defendants standing below in court discover that prosecutors can "indict" without "arguing" (no debate), judges can "judge" without "sentencing" (no judgment pronouncement), and attorneys can "be retained" without "discharging duties" (no active representation), the entire procedure resembles a theatrical play. In such a false and perfunctory environment, defendants may well think that since everyone is just going through the motions, they need not take their own crimes too seriously either.

Among the issues at this National Judicial Reform Conference, how to strengthen the prosecutor's burden of proof is one of the focal points of controversy among all parties. Yet some prosecutors still do not see the necessity of attending hearings, or raise the excuse of insufficient prosecutor manpower to argue that implementing court attendance is difficult. First, the earnest implementation of public prosecution by attending hearings can, on the one hand, compel defense attorneys to engage more deeply with the case facts (making it difficult for attorneys to slack off and perfunctorily coast), and on the other hand, exert a checks-and-balances effect to supervise judges. Moreover, through the process of substantive debate, mutual cross-examination, and in-depth argumentation, the objective of discovering the truth can also be achieved. As for the problem of insufficient prosecutorial manpower, while it is a fact, is this not precisely the issue the Ministry of Justice should endeavor to resolve? Neither manpower shortages nor the inability of prosecutors to implement debate are problems that arose overnight. Surely the Ministry of Justice, serving as the government's law enforcement representative, cannot continue to refuse to execute its legal duties under the excuse that it cannot be done?

If the National Judicial Reform Conference can only resolve the issues of judges, prosecutors, and attorneys (such as judicial ranks, increasing prosecutor manpower, removing restrictions on attorney court registrations...) without alleviating the suffering endured by the people during litigation (language barriers, poor litigation quality), and without dispelling public fear of judicial privileges and interference by "black gold," then holding it is pointless. From this perspective, rather than merely pinning our hopes on sweeping institutional and structural overhauls, judicial reform can perhaps begin by treating every single procedural step seriously and executing it thoroughly. The public trust in the judiciary that we lose drop by drop through every carelessly closed case must be won back drop by drop through every earnest trial process.