Incompetent Commanders Exhaust the Troops: Who Is Causing Judicial Overwork

The Taipei District Prosecutors Office investigated SinoPac Holdings over an illegal lending case involving more than 5.2 billion NTD. Following searches and interrogations, it applied to the Taipei District Court on the morning of June 17 to detain three individuals, including SinoPac Holdings Chairman Ho Shou-chuan. According to reports, the prosecutor spent a full nine hours compiling the case files, and at 4:00 PM, the case records were transferred to the court. Subsequently, the lawyers spent four hours sweating over photocopying the documents. The court immediately held the detention hearing at around 10:00 PM, which extended into the early morning hours of the 18th for questioning, and ruled at approximately 1:00 PM to approve the detention and incommunicado order. During the process, the lawyers were driven to exhaustion trying to copy the files, and the judge had to hastily read the files after the lawyers finished copying. The defendants, having to wait longer for the detention hearing due to the lawyers' photocopying and even having to bear the expenses for the lawyers' file review, certainly had an even harder time.

Consequently, some media outlets pointed out rather critically that while the amendment to Article 33 of the Code of Criminal Procedure—which grants defense counsel the right to review files during detention hearings—guarantees the defendant's right to access to court, it has also prolonged the duration of restrictions on personal liberty and exhausted judges, prosecutors, and defense lawyers alike.

Just as intelligence determines the outcome of a war, acquiring information is also the key to success or failure in litigation. Therefore, defendants and prosecutors must have equality of information for proceedings to be fair. Prior to this amendment, defendants and defense counsel in detention hearings did not know the reasons and evidence for the prosecution's detention request, making defense and argumentation out of the question. In the detention hearings, day after day, the scenario of a blind swordsman dueling Little Li's Flying Dagger played out, with fundamentally no fair trial or due process to speak of.

File Review in Detention Hearings Exhausts All Parties

Therefore, based on the principle of due process, the Grand Justices required in J.Y. Interpretation No. 737 that laws be amended within one year to allow defendants in detention hearings to "timely" obtain the reasons and evidence for the prosecution's detention request. Consequently, Article 33 of the Code of Criminal Procedure was amended to grant defense counsel the right to review files in detention hearings.

From the perspective of realizing due process and preventing the abuse of detention, this legislative amendment is progressive, and the media likely did not criticize the direction of the amendment, but rather pointed out the problems of the new system. Although file review can achieve the purpose of safeguarding the right of defendants in detention hearings to obtain information, prosecutors and defense counsel are exhausted as a result, and the detention period for defendants is prolonged. Furthermore, judges must hastily read the files and rush to hold hearings after defense counsel finish copying the documents. When considering the time and cost of photocopying, as well as the court's office equipment and manpower, file review seems by any measure to be a clumsy method that violates the principle of proportionality.

Legal practitioners with experience in detention hearings can easily foresee these problems. Therefore, when participating in public hearings and other meetings on the legislative amendments held by the Judicial Yuan, the author—based on the research conclusions of the Judicial Reform Foundation—suggested abandoning the simultaneous submission of case files in detention hearings. Instead, the prosecution should deliver copies of the detention request and attachments to the defendant, and the scope of debate and review should be limited to these. This not only eliminates the trouble of file review, focuses the scope of review, and allows the prosecution to decide the amount of information disclosed at the detention hearing without fearing the leakage of all investigation secrets, but it also saves the time needed to compile case files for simultaneous submission. It can be described as a triple-win solution. However, the Ministry of Justice insisted on the simultaneous submission of case files, advocating that judges present the files on the spot during the hearing to satisfy the defendant's right to information. This approach not only exhausts judges, but also fails to meet the requirement under Interpretation No. 737 that defendants must be "timely" informed. Therefore, the Judicial Yuan did not accept it. Yet, in order to complete the legislative amendments within the one-year deadline set by the Grand Justices, it could not entirely ignore the insistence of the Ministry of Justice. Thus, "file review in detention hearings," an approach that exhausts all parties, became the "final solution."

Departmentalism of Court and Prosecutors' Office Leaders

Amid the wave of opinion submissions triggered by the National Conference on Judicial Reform, many pieces accused the public of excessive litigation, thereby exhausting judges and prosecutors. However, the aforementioned legislative amendment process demonstrates that judicial leaders, driven by departmentalism and an unwillingness to seek truth from facts, stubbornly cling to inefficient workflows incapable of meeting reality. This results in court and prosecutors' office personnel doubling their efforts for half the results, and an inequitable distribution of labor—which is the primary cause of overwork in the judiciary.

We should not lightly complain that the people are litigious, because if disputes are not resolved through the judicial system, they are likely to be settled under pre-modern societal models by local strongmen or underworld figures, or even resolved through "private justice." Taxpayers fund judicial personnel, and judicial personnel are in no position to accuse the public of excessive litigation. The rising volume of cases and more rigorous procedures are both inevitable developments of the rule of law. What judicial reform needs is effective organizational management, responding to the challenges of case volume and procedural rigor through the improvement of workflows, methods, and personnel management. Blaming the public blindly for excessive litigation merely allows the leaders of courts and prosecutors' offices—who should be held accountable for poor management—to escape responsibility, and it fails to solve the problem.

※ Originally published in Apple Daily on June 22, 2017