Op-Ed | Remote Court Hearings: Can I Say "No"?

The Judicial Yuan approved the draft "Special Act for the Judicial Procedures during the Period of Communicable Diseases with Severe Epidemic Conditions" on June 1, and the Legislative Yuan sent it directly to second reading yesterday (June 7); it could pass as early as next week. But if courts conduct remote hearings under the Special Act, will parties receive the same protections they would in an in-person hearing? The Taiwan Bar Association, Taipei Bar Association, Taiwan Association of Criminal Defense Lawyers, and Judicial Reform Foundation have each issued statements identifying problems. With legislation imminent, there is real cause for concern over whether the Special Act will contain adequate safeguards.

Remote Hearings Must Not Compromise Rights Protection

First, if litigation were to grind to a complete halt during the pandemic, the parties' ability to vindicate their rights would plainly suffer. But moving proceedings to remote video can also impair rights because of equipment failures, digital divides, or the difficulty of confidential communication between parties and counsel. The Land Expropriation Review Committee's recent insistence on meeting remotely, for example, immediately triggered concerns about information inequality and age discrimination. Taiwan's procedural laws generally assume direct, in-person adjudication. If severe epidemic conditions require exceptional procedures, they should therefore proceed only on the premise that parties receive an equivalent level of rights protection.

Conversely, if a proceeding under the Special Act infringes the right to a fair trial, it may constitute reversible error at a minimum and, in a more serious case, render the proceeding fundamentally invalid. Unless the statute is drafted carefully, remote hearings could create a cascade of new disputes instead of resolving existing ones.

If the Court Wants a Remote Hearing, Can I Say "No"?

That leads to the first set of questions under the Special Act: When may a remote hearing be held? May a party refuse? And if the court decides whether or not to proceed remotely, can a party challenge that decision?

Under the draft, whether to hold a remote hearing is largely left to the court. In a criminal case, the court or prosecutor may proceed remotely if doing so "does not impede the effective exercise of the defendant's right to a defense." In a juvenile case, the juvenile court must find that remote proceedings do not impede the juvenile's ability to express views or exercise other procedural rights, or undermine the juvenile's sound development. In civil and family cases, the court need only find remote adjudication "appropriate." If the necessary equipment is available and these standards are met, the court may proceed remotely. Conversely, if continuing the proceeding would be seriously difficult, the court may rule to suspend it.

In other words, a party may seek interlocutory review of a decision to suspend the trial, but the draft provides no clear remedy for a party who objects to a court's decision to hold a remote hearing. That is a significant gap in the protection of procedural rights.

Article 4 of the Special Act, dealing with criminal proceedings, at least requires the court to "consult the opinions of the parties and litigation participants" before proceeding remotely. Article 8 contains no comparable requirement for civil or family cases. That omission could easily be read as deliberate, leaving parties in civil and family proceedings without even an opportunity to state their views before a remote hearing is imposed.

There are also practical questions. If a remote hearing is disrupted by poor connectivity or another problem-for example, if a party and counsel cannot communicate confidentially-should the proceeding be suspended? How should witnesses or expert witnesses take an oath remotely? How should physical evidence be presented? Remote hearings raise many such issues that require detailed supporting rules, yet the current Special Act does not address them.

The Principle of Public Trial Must Not Be Abandoned

The historical development of human rights and adjudication reflects a reaction against older systems in which secret trials could be used to manipulate outcomes. Modern human-rights instruments and constitutions therefore emphasize public trial as a defining feature of a fair judiciary. Unless the law specifically requires a closed proceeding-as in certain juvenile or sexual-assault cases-members of the public may generally attend court and observe the proceedings.

Without a mechanism for public access, remote hearings would seriously undermine the principle of public trial. This is especially concerning in high-profile cases: closed argument or pronouncement of judgment can easily generate unnecessary speculation and rumor and erode public confidence in the judiciary.

Yet the current Special Act contains no framework for remote public access. Does that mean hearings during the pandemic will become non-public by default? Courts should not only ensure access for litigation participants, social workers, and parties' family and friends, but also pursue epidemic-control goals through less restrictive means-for example, limited advance registration for remote public observation or access for news media to observe and report on proceedings.

In sum, the Legislative Yuan should scrutinize the Special Act closely from the standpoint of protecting individual rights and address the many problems that may arise in remote hearings. Only then can court proceedings help resolve disputes rather than generate new ones.

※ This article was published on June 10, 2021, by Up Media