Hsu Yu-hsiu's Special Article: The Only Solution Consistent with Justice—Simultaneous Trial of Lay Participation and Jury Systems

Last Thursday (April 23, 2020), I was invited to attend a public hearing convened by legislator Li Kuei-min, the convener of the Judiciary and Organic Laws and Statutes Committee of the Legislative Yuan. This was the first time since the closing meeting of the National Official Conference on Judicial Reform held on August 12, 2017, that I had the opportunity to participate in discussions by a state organ of power regarding the choice between the lay participation system and the jury system. This time, I participated in my capacity as the convener of Group 4 of the National Official Conference on Judicial Reform.

Controversy over Integrity

Reviewing the meeting materials, the draft representing the ruling party's stance only featured the lay participation draft proposed by the Judicial Yuan and the Executive Yuan, as well as the lay participation drafts proposed by legislators such as Chou Chun-wei and Chuang Jui-hsiung. The rumored inner dual-track or outer dual-track proposals for simultaneously trialing lay participation and jury systems were nowhere to be seen. I could not help but ask to investigate this hearsay evidence: Had the Judicial Yuan and the Ministry of Justice previously reached a consensus with civil society groups advocating for the jury system to trial the lay participation and jury systems simultaneously? This conclusion had even been certified in the presence of DPP Caucus Whip, Legislator Ker Chien-ming.

To my surprise, Secretary-General Lin Hui-huang of the Judicial Yuan stood up at the public hearing and solemnly stated that no such thing ever happened. Meanwhile, Political Deputy Minister of Justice Tsai Pi-chung acted like a bystander, remaining silent on the incident. DPP legislators were nowhere to be found at that moment, leaving a lack of testimony from the DPP as one of the parties involved. Following an impassioned rebuttal by Mr. Lin Yung-sung, Chairperson of the Judicial Reform Foundation, and confirmation by another attending party, attorney Cheng Wen-lung, that such an event indeed took place—and out of concern that Secretary-General Lin's response might damage the reputation of judges—Secretary-General Lin finally requested Judge Chiu, an official on secondment at the Department of Criminal Affairs, to provide an explanation. After Judge Chiu's cautious yet vague explanation, some light was finally shed on the formulation process of the criminal jury and lay participation drafts: communication and consultation procedures between officials and public opinion clearly existed, and it appeared that someone subsequently reneged on the shared understanding of the consensus.

This touches upon the issue of integrity. What is the due process in human interactions? Nothing more than integrity and honesty. Without integrity and honesty, the procedural justice of interpersonal interactions ceases to exist. If one fails to even act with basic human decency, let alone act as a judge who determines right from wrong and settles disputes, or as a member of parliament who speaks for the people.

When faced with matters lacking procedural justice, everyone should stand up for what is right; otherwise, when you are treated unjustly one day, you cannot expect others to stand up for you. Therefore, one must not remain silent on this incident.

Analyzing the Voting Conclusions of the National Official Conference on Judicial Reform

Regarding the failure of the Judicial Yuan to propose a concurrent jury system draft, the reason provided by Secretary-General Lin of the Judicial Yuan was that a vote on the simultaneous trial of both systems in Group 4 of the National Official Conference on Judicial Reform only received 5 votes. Given that the former Secretary-General had already taken the initiative to seek consensus with civil groups, the vote rejecting the dual-track proposal had already been rendered ineffective. Bringing up this reason again to oppose the simultaneous trial of both systems is, in fact, not upright.

There were five voting proposals concerning the jury or lay participation systems at the National Official Conference on Judicial Reform. First, trialing the American jury system received 7 votes (I misremembered this at the public hearing and take this opportunity to apologize). Second, trialing the Japanese lay assessor system also received 7 votes. Third, the simultaneous implementation of jury and lay participation systems received 5 votes. Fourth, leaving it to the Judicial Yuan to choose one system to trial and reviewing the choice after five years also received 7 votes. The fifth proposal was a procedural motion raised after failing to reach a conclusion, hoping to revive the proposal for the concurrent trial of both systems, which gained 9 votes with 19 members present—just one vote short of a majority.

Among the 5 votes for the dual-track system, 2 votes came from Chang Ching and Yen Chueh-an, who originally supported the jury system. This means there were 3 votes—from Li Nien-chu, Lai Mi-yü, and Hsieh Ming-chu—that advocated for the dual-track system from the very beginning. While this might make the dual-track system seem like a tiny minority, by the time of the fifth procedural motion, the 9 votes in favor came from: Lu Ping, Chiang Yuan-ching, Li Nien-chu, Lin Chao-chun, Kao Ju-ping, Chen Yao-hua, Chen Chin-hsien, Chang Ching, and Hsieh Ming-chu. In other words, Chiang Yuan-ching, Lin Chao-chun, Kao Ju-ping, and Chen Chin-hsien, who originally supported lay participation, were willing to reconsider the dual-track system. Chang Ching, Lu Ping, and Chen Yao-hua, who originally supported the jury system, were also willing to reconsider the dual-track system. Furthermore, the 7 votes respecting the Judicial Yuan's choice of either system for trial were cast by: Chiang Hui-min, Ho Cheng-cheng, Lin Chao-chun, Kao Ju-ping, Chen Hsien-yu, Tsai Yuan-shih, and Hsieh Ming-chu. Among the members willing to respect either trial option, Chiang Hui-min, Lin Chao-chun, Kao Ju-ping, Chen Hsien-yu, and Tsai Yuan-shih were originally supporters of the lay participation system, meaning that if the Judicial Yuan had chosen the jury system, they would have been willing to support it as well.

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Analyzing the voting structure above, can one really say that only 5 votes favored the dual-track system? Quite the contrary. When probing the true intentions of the members, the dual-track system was actually the option supported by the majority of members and the one that could achieve the greatest common denominator.

What Does Reform That Disregards Public Will Look Like?

If the Judicial Yuan, which only secured 7 votes, could oppose the dual-track system and insist on trialing only lay participation simply because the third voting result garnered only 5 votes, could not the faction advocating for the jury system—which also secured 7 votes—use the exact same reasoning to insist on trialing only the jury system?

The faction advocating for the jury system stated at the public hearing that, despite having absolutely no optimism regarding the basic stance of the lay participation system, they were willing to give the lay participation system a chance to be trialed alongside it. This demonstrated gentlemanly conduct, a willingness to make concessions, and a respect for the public will (or perhaps official will) of the other side. Conversely, the prosecution and judicial systems—which mobilized numerous public resources, unhesitatingly sacrificed their image throughout the National Official Conference, and intimidated and pressured the representatives of the National Official Conference on Judicial Reform—only managed to tie with civil groups in the vote, yet they completely negate the value of the other side's existence and completely disdain another form of public will. Is it because power is in their hands? Or because the votes are already secured anyway?

If this is not overbearing tyranny, what is? Near the end of the public hearing, Deputy Minister of Justice Tsai Pi-chung used the passage of the Attorney Regulation Act as an example to argue that both sides should take a step back to allow reform to move forward, but then abruptly stated in the next sentence: Therefore, the jury system is unfeasible. I wonder if this was intended to set a benchmark for coupling tyranny with lack of integrity?

Policy Choices That Disregard Public Will Only Accumulate Public Grievances

Several assertions of "first seek to have it, then seek to make it good" surfaced during the public hearing. After Minister Tsai Pi-chung's remarks, the first sentence of my response was: First seeking to have a bad thing will never yield a good thing.

The first evil of stubbornly favoring the lay participation system is its disrespect for public will, or at least its disrespect for a different kind of public will. If the public will advocating for the jury system is not worth valuing, how did the jury system ever make it into the DPP's party platform? Could it be that when the DPP writes its party platform, it just writes things casually without any need to implement them?

When the jury system was written into the DPP's party platform, it was actually a system very unfamiliar to the public. Back then, the Kuomintang naturally viewed it as a minority opinion and ignored it. But today, the public will supporting the jury system is alive and walking through society, standing on equal footing with the Judicial Yuan within the National Official Conference on Judicial Reform.

As for the Judicial Yuan mentioning that their lay participation poll—funded by the blood and sweat of the people—showed 82.6% support, I advise the Judicial Yuan not to bring this up again. Former Vice President of the Judicial Yuan and former Grand Justice Su Yung-chin, who spoke first at the public hearing, noted that public opinion supporting the formerly proposed grand bench trial system also accounted for over 80%. And what fate befell that grand bench trial system, which cost hundreds of millions to research and prepare? After former President Su stepped down, the grand bench trial system he claimed was highly supported by public will was completely cast aside by the Judicial Yuan like a worn-out shoe. Both polls were backed by power; what kind of public will were they? They appear to be official will determined to enforce the exercise of power. The reason the grand bench trial system failed back then, and the criticism it suffered, was precisely because it was rammed through regardless of opposition.

Because of disrespect for public will, an unwillingness to communicate with public will, and insincere perfunctoriness in facing public will, how could it not manufacture confrontation? And how could confrontation not further damage the reputation of those in power?

If You Are Not Prepared Yourself, Do Not Drag Others Down With You

If the Judicial Yuan is so categorical about the merits of the lay participation system, why do they only dare to trial it? Calling it a trial clearly demonstrates a lack of certainty regarding the merits and demerits of the system. In contrast, proponents of the jury system have always been confident in it. It is precisely because public authorities lack confidence that proponents respect this lack of confidence and are willing to trial it together.

The Judicial Yuan's stubborn rejection of the jury system and its utmost efforts to block it—could it be out of fear of competition? Prohibiting the joint trial of the jury system—is it because they lack confidence in themselves, and therefore refuse to allow others to have confidence?

At the public hearing, Professor Chin Meng-hua from National Chiao Tung University expressed the view that legal professionals and legal culture are not yet prepared for the jury system. Professor Liu Fang-ling from Tunghai University subsequently agreed with this view. Shortly after finishing their remarks, they left the venue, leaving no opportunity to ask them who these unnamed legal professionals were. Both legal and non-legal professionals advocating for the jury system appeared to be ready. If these two professors consider themselves unprepared legal professionals, they perhaps should not casually drag others down with them.

From the attitude of the Judicial Yuan to statements from such legal scholars, it is hard not to mutter: If Taiwan's legal education consistently produces legal professionals who lack confidence, distrust others, and forbid others from having confidence, is it not entirely natural that the judicial system operated by such legal professionals fails to gain the public's trust?

As for legal culture? Operating on a similar wavelength is what Secretary-General Lin calls "national conditions," which also appeared in the statement released on April 27 that seemingly failed to fully present the communication process with civil society. Speaking of legal culture and national conditions, which involve people living in the same society as them—since they never explained what "national conditions" mean or what legal culture they perceive—there is no way of knowing whether their perceived national conditions and legal culture differ from those of others. Consequently, there is no way to verify whether their arguments hold even the slightest bit of water, or whether they are once again guilty of dragging others down with them.

What on Earth Do National Conditions and Legal Culture Have to Do with Anything?

Why trial things in the first place? It is precisely because there is no certainty regarding national conditions and legal culture. The Judicial Yuan worships Japan's lay assessor system without explaining which of Japan's legal cultures and national conditions are identical to Taiwan's to facilitate such a transplant. On the other hand, Professor Liu Fang-ling, who studied in Japan, made it clear: Japan's reform of its trial system, unlike Taiwan's, was not aimed at rescuing judicial credibility, and the national condition of Japanese citizens trusting their judiciary is obviously different from the high proportion of Taiwanese citizens who distrust the judiciary. If the national condition regarding trust in the judiciary differs, then the legal cultures of the two countries should also be vastly different.

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Therefore, the Japanese cannot endorse their own lay assessor system, because it was never intended to rescue judicial credibility in the first place; even if the product is unsuitable in Taiwan, it is because national conditions are inherently different. So should we really believe whether Taiwan's national conditions are suited to the Japanese lay assessor system? Or is the Judicial Yuan's goal simply to reshape Taiwan's national conditions to look like Japan's? Yet, do those who pull out the phrase "national conditions" not argue that national conditions are inherently the same, which is why adopting the lay assessor system is steady and sound?

As for legal culture, if the legal cultures of the two countries are also different, then there should likewise be no prepared legal culture for Japan's lay assessor system either. If Professors Chin and Liu believe the jury system should not be adopted because the legal culture is unprepared, then do they actually oppose the lay participation system as well, but simply dare not say so because they cannot afford to offend the two major power bases of the Judicial Yuan and the Ministry of Justice? What about the Judicial Yuan? Are they trying to use the Japanese lay assessor system to mold a new legal culture in Taiwan? If so, why can they not use the jury system—which they argue grew out of a different legal culture—to mold Taiwan's legal culture? The jury system originated from major countries that promote the ideology of the constitutional state. Japan doesn't even rank higher than Taiwan on the scoreboard of constitutional state practices. Why does Taiwan not look up to the virtuous and emulate them, instead looking backward?

As for American culture, are Taiwanese people unfamiliar with it? Do Taiwanese people not identify with American values? Taiwanese people universally envy being American; may I ask if Taiwan truly lacks the national conditions applicable to a jury system?

Right, and then there is Taiwan's legal culture. If this refers to judges and prosecutors—who hold the exclusive power to decide matters of life and death—showing high enthusiasm for joint petitions, constantly stepping out to flex their muscles, and getting ready to engage in group brawls with those who criticize them, this is indeed uniquely Taiwanese. How does one prove that such a legal culture can adapt to—and can only adapt to—Japan's lay assessor system?

An Equal Trial Is an Economical and Effective Trial

If the aforementioned questions are difficult to answer, which is why they only dare to conduct a trial, that is understandable.

Whether Taiwan's legal culture and national conditions (assuming those who speak of them actually know what they are) are truly suited to adopting Japan's lay assessor system can only be known by actually trying it; otherwise, it is all empty talk. Taking action allows one to reach the destination sooner. Therefore, at the public hearing, I advocated taking action quickly rather than wasting and grinding away unnecessary human and material resources. This brings us back to the initial question: Why should the jury system be deprived of the opportunity to be trialed? Utilizing state resources to suppress the opportunity to trial the jury system precisely manufactures conflict, chaos, and the wasteful grinding away of human and material resources.

Self-importance is not an effective way of doing things. Only by respecting different opinions, treating diverse views equally, walking hand in hand together, and bearing different propositions collectively can we minimize resource consumption while maximizing effectiveness. Is this not ordinary common sense? Where is the logic in the Judicial Yuan's insistence on defying common sense and acting with self-importance? Attorney Chang Yung-hung, who formerly served as a judge of the Taiwan High Court, raised the argument at the public hearing that the dual-track system imposes too heavy a burden.

Comparing the current system, the Judicial Yuan's lay participation system, and the jury system, the lay participation system imposes the heaviest burden on judges who are already constantly crying out about overwork. This is because judges not only have to handle things personally, but like a teaching clinic in a hospital, they must also teach lay judges, with every single case presenting a new story, every panel of lay participants consisting of novices, and everything starting from scratch every single time. If the dual-track system becomes an unbearable burden, it is because the Judicial Yuan chose the lay participation system, not because the jury system joined in. As is well known, judges in a jury system truly sit as neutral arbiters, halting any procedural irregularities committed by courtroom participants and maintaining the fair conduct of proceedings without having to write lengthy judgments—which are truly the heaviest burden for judges. For judges, the jury system is the lightest burden.

Does it make more sense for a system that increases the burden to tell another system that reduces the burden, "Because my burden is already very heavy, you cannot join"? Or does it make more sense for the system with the lightest burden to say to the system with the heaviest burden, "Your joining will increase the burden, so you are unwelcome"? The system with the heaviest burden should be the one shunned; how is it able to arrogantly shun the system with the lightest burden? Is this some sort of extraordinary logic unique to judges?

Only when a system that itself places a heavy burden on judges is combined with something else does the original workload become even heavier. Conversely, adding a lighter system to a heavier system actually lightens the burden of the heavier system. If the lay participation system currently proposed by the Judicial Yuan intends to handle 600 cases, categorizes the types of crimes, and allocates 300 cases of identical crime types to the jury system, would the lay participation system not only need to handle 300 cases? Added together, the overall burden on judges is naturally reduced.

A Fast and Effective Way of Doing Things

The Judicial Yuan intends to trial the lay participation system for 6 years. If the results are poor, 6 years will have been wasted, and a new system will have to be trialed again. When will the people of Taiwan ever see the light of day? And if 6 years of the people's blood and sweat are merely spent learning from mistakes, how many legal professionals' lives and how much societal progress in Taiwan can afford to be ground away like this?

Everyone has been to school. Are basic education subjects like Mandarin, math, social studies, and natural science not taught simultaneously? A few hours per week, and after one semester, the foundation of each subject reaches a certain level concurrently. If Mandarin is studied first for a month, math for the second month, and social studies and natural science bring up the rear, by the end of the semester, what was learned in the first two subjects will have been forgotten. To proceed to the second stage, another warm-up period is required. Starting together and reaching the finish line together is forever the most effective way of doing things. Of course, this relies on division of labor; subject-based learning is the very concept of division of labor.

This method has already been demonstrated at the National Official Conference on Judicial Reform. Group 4 took the lead in adopting it, and the other groups promptly followed suit. Once the list of members for Group 4 of the National Official Conference was finalized, I immediately organized all issues into several sub-issues. After all members confirmed via communication channels, they respectively selected group conveners and, with the consent of all 19 members, joined the groups. Before the first meeting even began, every issue had already begun discussion, data collection, and opinion synthesis. Each group proceeded simultaneously, so Group 4 strictly adhered to the original schedule, completing its final meeting on May 12. Working in sub-groups, starting work simultaneously, and finishing simultaneously—during this period, I helped organize proposals and write or polish conclusions, and still had ample time to participate in every meeting of the other groups.

Utilizing the same working method to effectively integrate relevant interested civil groups over the past six years, we completed three sessions of mock constitutional courts, one session of the mock Asian Human Rights Court, compiled a specialized Act on Evidence, and carried out core reforms of the Code of Criminal Procedure. Whether it is the current system, the lay participation system, or the jury system, the rules of evidence they require that comply with due process of law are the same, and they are already prepared.

The two projects of compiling the Evidence Act and preparing for the mock Asian Human Rights Court were also launched simultaneously. Despite encountering sudden disruptive obstacles during the year and a half of advancement, they were completed almost simultaneously. The third project announced simultaneously—the Global Online Law School—had to rely on modern technology, presenting a higher technological threshold for legal professionals, and lacked a third hand to help divide labor concurrently over that year and a half, which is why it is just starting to be promoted. However, this conception has clearly won the support of the capable coronavirus, and starting this year, it has blossomed all over the world. Without massive state resources to squander, my hardworking civil society partners and I used extremely limited resources to build this up through arduous manual effort and complete the work mentioned above.

What is the most economical and effective strategy for trialing a trial system? To trial the jury and lay participation systems synchronously, presenting their respective strengths and weaknesses within the same time and space. Only this is fair, genuinely helpful to the final judgment and choice, and capable of generating reform effects right during the trial period.

Why is the Judicial Yuan making every effort to block the jury system? Could it be that they only see competition and fear competition?

Returning to Integrity

Finally, returning to the issue raised at the beginning. Since the communication and consultation procedures initiated by the Judicial Yuan genuinely existed, the Secretary-General responding with a flat "absolute no such thing" makes it appear that they have steeled their minds not to take responsibility for their word.

Since they refuse to take responsibility, while one side says the general direction has been determined, most doubts have been eliminated, and there are already provisions, consensus, and even agreement from the Ministry of Justice—which joined the consultations midway and held dissenting views—leaving only the issue of a hung jury (which, along with other issues arising at the public hearing, will be discussed next time) and rendering a compromise solution not entirely absent, merely waiting for the Judicial Yuan to notify them to convene for further discussions; the other side naturally finds ways to interpret the situation as: since there is still one issue awaiting consultation, a consensus has not yet been reached. Thus, the side waiting for notification had no idea that the other party had long since seized the opportunity to slip away.

No matter how this incident develops, it likely confirms the criticisms leveled against the lay participation system: dancing with wolves as lambs, where lay participants become prisoners of the judges. If litigation experts who have spent years fighting judges in court and are quite familiar with their language could still fall into this trap, how can lay participants who hold high expectations of engaging in a dialogue with judges in the same courtroom be guaranteed not to become disoriented and led by the nose during the trial process?

※ This article was published in Storm Media on May 1, 2020