Pao-Ch'ing-T'ien or Judges? — Mobilizing the Public for Judicial Reform: "Public Voices Series"

Is justice equivalent to the truth? Is finding the absolute truth the same as finding justice? Although "discovering the truth" is an important objective of the judicial system, litigation must still respect numerous procedural guarantees. Overemphasizing "discovering the truth" can instead lead to the neglect and distortion of procedural fairness, ultimately failing to ensure the truth and justice of the outcome.

Many in society still harbor expectations of the judiciary reminiscent of the Pao-Ch'ing-T'ien style of interrogation—where investigation and adjudication are handled by a single authority. Through covert inquiries, divine intervention, and intimidation by the adjudicator, the truth is finally brought to light, forcing the offender to submit and confess. However, throughout history, how many adjudicators have possessed the supreme wisdom and divine assistance of Pao-Ch'ing-T'ien as depicted in dramas? If we expect every adjudicator to be a Pao-Ch'ing-T'ien and thus permit the same investigative methods and powers, can such methods and powers truly be guaranteed against misuse and abuse? While many miscarriages of justice in dramas are redressed by Pao-Ch'ing-T'ien, must victims in reality wait in despair for a Pao-Ch'ing-T'ien to appear? If the design of the judicial system adopts the high standard that every judge is a Pao-Ch'ing-T'ien, it will likely create and conceal numerous injustices and grievances in the pursuit of justice.

How ought we to expect judges to act? Should they be wise figures like Pao-Ch'ing-T'ien, or fair arbiters? Which approach is more rational institutionally for the conduct of trial proceedings and for judges as individuals? Among the various issues in judicial reform, whether criminal procedure should adopt the "inquisitorial system" (ex officio proceeding) or the "adversarial system" (party-driven proceeding) has consistently been a major controversy. The former grants judges the power of active investigation while also imposing upon them the duty to discover the truth; the latter allows the facts to emerge through the presentation of evidence and cross-examination by both the prosecution and the defense, with the judge acting merely as a neutral listener. While a judge dominating the entire litigation process may allow for a broader and deeper exploration of the case, it is often constrained by subjective perceptions of the facts. This tends to present the facts the judge expects to see, resulting in unfair judicial intervention in the parties' arguments. In contrast, under the latter system, where both parties present evidence and question each other, neither side can completely dominate the development of the case, rendering the presentation of facts more objective.

A bizarre phenomenon in Taiwan's criminal justice system is that plaintiffs—namely prosecutors—rarely participate substantively in investigations and arguments in the courtroom. While this may not be entirely attributable to the adoption of the inquisitorial system, it cannot be denied that the inquisitorial system fosters and rationalizes this bizarre phenomenon. Because judges are required to bear the duty of discovering the truth, it becomes immaterial whether prosecutors present sufficient evidence or participate in courtroom activities, as judges must independently find the evidentiary foundation to support their judgments. Originally, both criminal investigation and courtroom prosecution should be the duties of prosecutors. However, because the latter is neglected, prosecutors are freed from engaging in offensive and defensive legal battles for their indictments, potentially leading to perfunctory investigations. Regarding whether evidence is sufficient, since judges are required to investigate ex officio anyway, prosecutors abandon their duty to persuade the judge. This forces judges to shoulder the dual roles of investigator and adjudicator during the litigation process, which is both unfair and unreasonable to judges and litigants alike. The adversarial system allows prosecutors to truly exercise their function as the aggressors in criminal cases, transforming them into defenders of social justice. Interestingly, however, during this debate on judicial reform, the Ministry of Justice and prosecutors opposed this system. Their reasoning is that discovering the truth is the primary purpose of criminal procedure and that judges should bear this obligation, thereby shifting the responsibility for the success or failure of a case onto the judges. Even if discovering the truth is of utmost importance, why cannot prosecutors, acting as the plaintiffs, shoulder this responsibility themselves? Why cannot prosecutors participate more actively in courtroom evidence investigation and debate so that the facts can be more fully presented? While strongly advocating for the continued adoption of the inquisitorial system, can the Ministry of Justice and prosecutors reflect upon and improve this reality? Without an answer, such arguments are unlikely to be convincing.