Remedies Must Not Be Denied, Reputation Cannot Be Insulted

Photo / Dr. Huang Hui-fu and Attorney Chan I-hao at the press conference advocating for the amendment regarding "being convicted upon reversal of acquittal yet denied the right of appeal"

The unauthorized disclosure cases of former President Ma Ying-jeou and former Chiayi County Magistrate Ch'en Ming-wen both involved acquittals in the first instance followed by convictions in the second instance, yet they were able to appeal to the third instance thanks to the amendment of Article 376 of the Code of Criminal Procedure. Why is it that ordinary citizens whose cases have already concluded are denied this same right?

According to the Judicial Statistics Annual Report, Taiwan's courts received a total of 472,751 new cases in 2016. This massive caseload led the Judicial Yuan to devise ways to reduce the burden on courts at all levels. Restricting petty offenses from third-instance appeals under the pre-amendment Article 376 of the Code of Criminal Procedure was a product of this mindset. However, for cases that had already become final prior to the amendment, can the innocence of the people simply be sacrificed as a result?

Article 376 of the Code of Criminal Procedure Was Amended Due to a Declaration of Unconstitutionality, Yet Shortcomings Remain

Last year, the Grand Justices rendered Judicial Yuan Interpretation No. 752, declaring Article 376 of the Code of Criminal Procedure unconstitutional in cases where individuals were acquitted in the first instance, convicted in the second instance, and barred from appealing to the third instance. Legislators immediately amended Article 376, marking a major step forward for human rights in Taiwan. Unfortunately, the amendment failed to cover individuals whose cases had already concluded, leaving miscarriage-of-justice cases—such as that of Dr. Huang Hui-fu, a plastic surgeon at National Taiwan University Hospital—without a path to vindication.

Fortunately, legislators Hsiao Bi-khim, Chiu Tai-yuan, and Tuan Yi-kang, recognizing this issue, proposed the addition of Article 7-11 of the Enforcement Act of the Code of Criminal Procedure. This would conditionally give retroactive effect to the amended Article 376 of the Code of Criminal Procedure, granting individuals who suffered improper judgments an opportunity for relief. However, the bill is still under deliberation in the Legislative Yuan.

The Principle of Non-Retroactivity Should Not Serve as an Excuse to Oppose the Amendment

Reviewing the reasons why Article 7-11 of the Enforcement Act of the Code of Criminal Procedure has not yet passed, they are none other than opposition from the legal practice sector on the grounds of "non-retroactivity." Yet, the principle that laws are not retroactive aims to maintain legal stability, preventing it from being disrupted by subsequent legal changes and protecting people's reliance on existing rights.

Moreover, the updating of laws is a routine part of the legal order. Reliance on the continued validity of the legal order must constitute an interest specifically deserving of protection in a given case before it can serve as a basis for preventing the retroactive application of a law. Returning to this legislative amendment, the addition of Article 7-11 of the Code of Criminal Procedure does not deprive any individual of their rights, and it is truly difficult to imagine what interest requiring special protection exists here.

In short, the "principle of non-retroactivity" exists to protect the "rights" of the people, not to shield the "power" of state organs. Since the Grand Justices already determined in Interpretation No. 752 that the old Article 376 of the Code of Criminal Procedure was unconstitutional and improperly deprived people of their right of litigation, the principle of non-retroactivity should yield, based on the protection of human rights, to prioritize the safeguarding of the people's right of litigation.

Sound Supporting Mechanisms Can Balance the Burden on the Judicial Yuan

The proposed Article 7-11 of the Enforcement Act of the Code of Criminal Procedure put forward by legislator Hsiao Bi-khim and others stipulates that individuals wishing to apply for a retrial must file within two years after the amendment takes effect, and must retain an attorney to act as their representative.

This legislative design, on the one hand, ensures legal stability by preventing endless applications for retrials in the future; on the other hand, by mandating the retention of an attorney as a representative, disputes can be articulated through professional legal expression, thereby significantly reducing the burden on the courts. Therefore, both in terms of time and case quality, appropriate supporting measures have been designed, and the concerns held by the legal practice sector do not exist. The Legislative Yuan and the Judicial Yuan should pass this legislative amendment as soon as possible to truly safeguard the rights that the people once lost.

※ This article was published in Up Media on May 17, 2018