Op-Ed | Remote Hearings Must Safeguard Human Rights Above All

Tomorrow (the 10th), the Legislative Yuan's extraordinary session will hold cross-party negotiations on the draft Special Act on Judicial Procedures During Severe Communicable Disease Epidemics. This is an emergency measure proposed by the Judicial Yuan that would authorize judges and prosecutors to conduct remote hearings. Because several provisions have raised concerns about reduced procedural and human-rights safeguards, the proposal has prompted successive statements and calls for amendment from the Taiwan Bar Association, the Taipei Bar Association, and the Taiwan Association of Criminal Defense Lawyers.  

In response to these criticisms, the Judicial Yuan countered that the U.S. and U.K. have also legislated to allow judges to conduct remote hearings in response to the pandemic, making its draft entirely appropriate. The problem, however, is that Section 15002 of the Coronavirus Aid, Relief, and Economic Security Act (known as the CARES Act), passed by the U.S. in March 2020, requires remote hearings to meet four criteria: (1) The judge must issue a ruling on the remote hearing. (2) The judge must confirm the necessity of the remote hearing. (3) The judge must obtain the defendant's written consent after consultation with counsel. (4) The remote hearing shall not exclude the defendant's right to representation by counsel. The Judicial Yuan's draft is devoid of the above requirements, which explains why it has provoked such backlash from legal groups. 

More seriously, the Judicial Yuan's remote hearings do not simultaneously allow public observation, which clearly violates the constitutional principle of public trials. Even more troubling, the Judicial Yuan's remote-hearing proposal does not provide for public access, plainly conflicting with the constitutional principle of public trials. interpretation stating that remote hearings authorized by the CARES Act must encompass not only defendants, lawyers, and court personnel, but also others who frequently participate in or observe court proceedings, including victims, family members, the public, and the media. SCHEDULE 25 of the U.K. Coronavirus Act 2020 likewise authorizes judges to make full audio and video recordings of remote hearings and broadcast them so the public can observe. Since the Judicial Yuan emulated the U.S. and U.K. in drafting special regulations, why does it focus solely on expanding the litigation command powers of judges and prosecutors while neglecting to safeguard more vital judicial human rights?  

If the Judicial Yuan is drawing on the United States and the United Kingdom in drafting this special legislation, why focus only on expanding judges' and prosecutors' authority to manage proceedings while overlooking the even more important need to protect judicial human rights? 

※ This article was published in the Liberty Plaza on June 9, 2021.