President of the Judicial Yuan, You Have Held Seven Dual-Track Consultations: Have You Forgotten, or Are You Afraid to Remember?

In 2016, the National Consultative Conference on Judicial Reform, where non-lawyers constituted the majority, produced quite a few refreshing resolutions. However, after two years of official implementation, the Judicial Yuan's self-published polls show that the public still feels indifferent toward judicial reform, and public trust in the judiciary has not increased. What on earth is going on?

The issue that resonates most with the public regarding judicial reform is lay participation in trials. The bill submitted by the Judicial Yuan this session is the Draft Act for Citizen Participation in Criminal Trials, which adopts the Japanese lay assessor system while excluding the Anglo-American jury system. The Judicial Yuan has publicly claimed that the lay assessor and jury systems cannot be jointly trialed, and that it has never discussed a dual-track system combining both with civil society organizations. Is this really the case?

In January 2019, Secretary-General Lü T'ai-lang of the Judicial Yuan contacted the Judicial Reform Foundation and the Taiwan Association for Jury System to negotiate an "internal dual-track system" incorporating both jury and lay assessor systems. After five months and seven meetings, a preliminary consensus was reached. The Judicial Yuan even drafted provisions for the negotiation, with only one minor item requiring further discussion. Later on, representatives from the Ministry of Justice were invited to join, and after two or three discussions, the Ministry of Justice also largely agreed, with legislation failing to pass solely because there was insufficient time for review during the Legislative Yuan session. Five months of joint efforts between civil society and the Judicial Yuan is not a short time, and seven meetings were by no means perfunctory. Today, by ignoring the facts and publicly claiming that it has never discussed a dual-track system incorporating jury and lay assessor systems with civil society groups, the Judicial Yuan has undoubtedly dealt yet another heavy blow to a judiciary eagerly striving to rebuild public trust!

Looking back at the discussions on lay participation in trials in the Fourth Division of the National Consultative Conference on Judicial Reform, members supporting the jury system and those supporting the lay assessor system were evenly matched, each receiving seven votes, neither reaching a majority. Past polls on support for the jury system and the lay assessor system have also been neck and neck. If the Judicial Yuan respected public opinion, it should logically incorporate both systems into the draft for trial implementation and evaluation. Yet, President of the Judicial Yuan Hsu Tsung-li has a special fondness for the lay assessor system—which Japan only began implementing in 2009—while arbitrarily excluding the jury system that has been practiced in Anglo-American nations for centuries. This is truly perplexing!

Shifting from adjudication by professional judges to trials with citizen participation is grounded in the principle of popular sovereignty and aims to democratize the judiciary. Does a single President of the Judicial Yuan deciding on their own to adopt the lay assessor system and exclude the jury system conform to the principle and spirit of popular sovereignty? Furthermore, according to the draft submitted by the Judicial Yuan, future legal amendments and related supporting measures will undergo six years of trial implementation and evaluation. Why exclude the jury system in advance when no trial implementation or evaluation has yet taken place? Taiwan has never trial-implemented either the jury or lay assessor system, yet the Judicial Yuan publicly claims that the lay assessor system is better suited to Taiwan's national conditions. If the Judicial Yuan is so omniscient, what need is there for trial implementation and evaluation!

On March 27 of this year, the Alliance for Monitoring the Resolutions of the National Consultative Conference on Judicial Reform paid a visit to President Tsai Ing-wen. President Tsai instructed that the Judicial Yuan's judicial reform work should communicate with civil society as much as possible to form a partnership. Yet President of the Judicial Yuan Hsu Tsung-li has acted in the exact opposite direction. What profound reason, too abstruse for the public to understand, could possibly compel him to slap President Tsai Ing-wen in the face?

※ This article was published in the Liberty Times on April 27, 2020.