The "Prison External Inspection Panel" Must Possess Greater Independence and Proactivity

Foreword

The "Prison External Inspection Panel" is a new system heavily emphasized by civil society groups that participated in the comprehensive amendments to the Enforcement Act of Imprisonment and the Detention Act in 2019. Prisons are closed institutions where actual internal problems are not easily known to the outside world, and operations are prone to external misunderstandings. Therefore, civil groups advocated for the establishment of an independent external inspection panel to present the actual conditions of prisons from the perspective of an independent and impartial third party. It is hoped that by enhancing transparency, the rights of inmates will be protected and prison operations improved. After the establishment of this system, the greatest public skepticism has been that the vast majority of prison inspection panel members are recruited by the prisons themselves, with some members already well-acquainted or having business dealings with the prisons. This raises doubts about whether externality and independence truly exist (for relevant explanations, see the article "Letting the Sunshine into Prisons: Expectations for the Selection of Prison External Inspection Committee Members").

In response to the aforementioned doubts, the Ministry of Justice pre-announced the draft amendments to certain provisions of the Regulations on the Implementation of External Inspection Panels for Prisons and Detention Centers on September 23, 2022, inviting those with opinions or suggestions for amendment to submit them within 14 days following the day after the pre-announcement. The current draft amendments primarily focus on the following two points:

1. Amending the rule so that all members of the "Prison External Inspection Panel" shall be selected and appointed from the talent pool established by the Agency of Corrections, and requiring that members not recommended by the authority (i.e., the prison) must constitute a majority.
2. Amending the rule to prohibit civil servants of the Ministry of Justice and its subordinate agencies from serving as members of the "Prison External Inspection Panel" during their tenure and for three years after leaving office; additionally, adding a provision that individuals who have contracting, trading, mandate, or leasing relationships with prisons or inmates shall not serve as members.

Unresolved Issues in the Draft Amendments to the Regulations on the Implementation of External Inspection Panels for Prisons and Detention Centers

While the direction of the aforementioned amendments is commendable, the author must still point out the following four unresolved issues in the draft amendments:

1. Will the requirement that members of the "Prison External Inspection Panel" not recommended by the prison must constitute a majority be circumvented?

   The Regulations on the Implementation of External Inspection Panels for Prisons and Detention Centers stipulate that the Agency of Corrections shall establish a talent pool of experts and scholars for external inspection panels. Originally, the talent pool was intended to have the Agency of Corrections widely consult various relevant agencies (institutions), schools, and organizations for recommendations of experts and scholars, or accept self-recommendations from such experts and scholars, thereby broadly incorporating experts and scholars from all walks of life who care about prisons. However, during the selection process of the first-term members, it occurred that over ninety percent of the prison external inspection panel members were personally sought out by the prisons and nominated as proposed appointees, and then, based on the willingness of these proposed appointees, had their academic and work backgrounds kept unpublicized or were included in the talent pool with their consent. As for other experts and scholars incorporated into the talent pool through consultations by the Agency of Corrections in accordance with regulations, they were virtually left out in the cold, with very few actually being selected and appointed as members.

   To alleviate the aforementioned problem, although the Ministry of Justice stipulated in the draft amendments that external inspection panel members not recommended by prisons should constitute a majority, prisons can still first find proposed appointees and then ask them to self-recommend or have their affiliated units recommend them to the talent pool, thereby circumventing the requirement that non-prison-recommended external inspection panel members must constitute a majority. How the Ministry of Justice and the Agency of Corrections will exercise oversight and prevent this situation from happening remains to be observed.

2. Are the regulations on conflict of interest sufficient as they stand?

   To avoid external doubts regarding the fairness and objectivity of the members of the "Prison External Inspection Panel" in performing their duties, this draft amendment expands the category of persons ineligible to serve as members from the original "civil servants currently serving in supervisory authorities and their subordinate agencies shall not serve as external inspection panel members" to "civil servants of the Ministry of Justice and its subordinate agencies shall not serve as external inspection panel members during their tenure and for three years after leaving office." This can address the current practical issue of civil servants from agencies subordinate to the Ministry of Justice that have business dealings with prisons (such as probation officers) serving as such members. Furthermore, adding the category that "those with contracting, trading, mandate, or leasing relationships with prisons or inmates shall not serve as external inspection panel members" addresses the issue of individuals entering prisons in a personal capacity to provide medical, psychological, social work, or legal services while simultaneously serving as panel members.

   However, this newly added provision may simultaneously suffer from being both overly restrictive and insufficiently regulated, which warrants the attention of the Ministry of Justice.

   Regarding the overly restrictive aspect, if a prison inmate retains a lawyer to file a lawsuit against the prison, this constitutes a direct conflict of interest, and it is indeed inappropriate for the lawyer to serve as a panel member. However, if an inmate retains a lawyer to defend them in an ongoing criminal case of their own, because the business handled by the lawyer under such a mandate does not involve prison affairs, it is not necessarily required to completely prohibit them from serving as a member; instead, a case-by-case recusal approach can be adopted (for example, when the inmate who retained them submits a petition to the "Prison External Inspection Panel"). Nevertheless, from the perspective of establishing fairness and objectivity to a high standard, entirely excluding anyone with any mandate relationship is also an ideal, provided that the "Prison External Inspection Panel" of each agency has other suitable legal experts and scholars available to serve as members.

   The real problem with this newly added item lies in insufficient regulation. For instance, a certain medical institution is a National Health Insurance contracting hospital for a certain prison, and that medical institution has concluded a "National Health Insurance Special Medical Service Institution Contract" with the National Health Insurance Administration (belonging to a type of administrative contract), whereas there should be no contracting, trading, mandate, or leasing relationship between that medical institution and the prison. The medical institution dispatches physicians to the prison to provide outpatient medical services; the inmate establishes a mandate or quasi-mandate relationship with the medical institution, but does not exist in a mandate relationship with individual physicians, who are merely performance auxiliaries of the medical institution and have no mandate relationship with the inmate. Not to mention that the superintendents, deputy superintendents, or managerial levels of that medical institution, although decision-wise they may have a substantial business relationship with the prison regarding the provision of medical services to prison inmates, do not legally constitute contracting, trading, mandate, or leasing relationships with the prison or the inmates. Other agencies or public/private groups that have business dealings with the prison—even if they provide services inside the prison or transitional services upon release—whose affiliated individuals do not constitute contracting, trading, mandate, or leasing relationships with the prison or inmates, also cannot be regulated.

   In addition, among the members of the first-term "Prison External Inspection Panel," several police officers were selected and appointed as members. The outside world cannot be certain whether these police officers serving as members indeed possess relevant knowledge and enthusiasm for promoting the rights of prison inmates, which just happens not to be visible to outsiders; or whether they were included in the proposed appointment list due to personal friendships with personnel in the prisons who have the authority to propose the appointment list (such as Central Police University senior-junior relationships)? The lack of appropriate disclosure and regulatory mechanisms for personal friendships between members and those in prisons who have the authority to determine the proposed appointment list has also led to public skepticism regarding the fairness and objectivity of members in performing their duties.

3. Is it really unfeasible for the list of proposed appointees for "Prison External Inspection Panel" members not to be proposed by the prisons?

   When formulating the Regulations on the Implementation of External Inspection Panels for Prisons and Detention Centers, civil groups originally argued that, according to the parent acts of this authorization regulation—the Enforcement Act of Imprisonment and the Detention Act—members are selected and appointed by the Agency of Corrections reporting to the Ministry of Justice for approval, and the authorization regulations should not additionally incorporate a provision where prisons propose the list of proposed member appointees, which is then reported by the Agency of Corrections to the Ministry of Justice for approval and appointment. Because the parent acts do not stipulate that prisons may propose the list of proposed member appointees, and because having the inspected agency propose the list of committee members who are supposed to inspect it is difficult to align with the spirit of the parent acts requiring the inspection panel to possess independence and externality, there are concerns that this exceeds the scope of authorization of the parent acts.

   Returning to the selection and appointment design of the parent acts and preventing the prisons—which ought to be subject to supervision—from exerting excessive substantial influence over the member list, thereby ensuring the independence of each "Prison External Inspection Panel," has always been the advocacy of civil groups. In this draft amendment, opinions on this part are still not adopted. It is not difficult for the Agency of Corrections to directly propose the lists of proposed appointees for each member: it only needs to add the geographical scope within which experts and scholars are willing to serve as members in the columns of the talent pool, and if it is found that the number of experts and scholars in a specific geographical scope is insufficient, then consult agencies (institutions), schools, and organizations in that geographical region for recommendations. Aside from this method, the Agency of Corrections could also emulate the selection method for members of the Gender Equality Education Committee of the Ministry of Education by forming a selection committee to conduct selections targeting recommended persons.

   If the Ministry of Justice believes that returning to the selection and appointment design of the parent acts is unfeasible and that the submission of proposed member appointment lists by each prison must be maintained, please also provide a full explanation to the public so as to be subject to public scrutiny regarding its policy decisions.

4. How to retain suitable members and eliminate unsuitable ones?

   As the term of the first-term "Prison External Inspection Panel" members concludes, aside from newly appointed members, another important question is: which members of the first term should be retained, and which should be eliminated?

   This amendment to the authorization regulations did not focus on this matter. Although this does not necessarily have to be prescribed through authorization regulations, the Ministry of Justice and the Agency of Corrections should still design reasonable standards to determine which members to retain. Members who have invested earnestly can not only be actively retained but also considered for reassignment to members of other prisons based on their willingness. The author preliminarily suggests the following indicators:

   • Attendance rate: Currently, each "Prison External Inspection Panel" should hold a meeting every quarter. If the attendance rate is low, it is recommended not to retain the member. If members hold additional meetings on their own initiative, it can be inferred that they are relatively earnest members and should be encouraged to stay.

   • Frequency of participating in inspection actions specified in Article 12 of the Regulations on the Implementation of External Inspection Panels for Prisons and Detention Centers: Article 12 of the Regulations on the Implementation of External Inspection Panels for Prisons and Detention Centers prescribes the inspection actions that prison external inspection panels may conduct.

     1. Conducting on-site visits entering the agency.
     2. Interviewing agency personnel, inmates, or related persons.
     3. Requesting agency personnel, inmates, or related persons to provide written opinions.
     4. Reviewing, transcribing, or copying necessary documents and electronic records.
     5. Other matters related to agency operations and inmate rights. From the frequency of members participating in the aforementioned inspection actions, their degree of dedication can also be understood.

   • Circumstances of participating in the drafting of external inspection reports: Currently, the presentation format of some prison external inspection reports looks very much like meeting minutes produced by prison personnel, and doubts have been raised as to whether the reports were drafted by the members themselves; however, there are also reports from some "Prison External Inspection Panels" with rich content, leading to the inference that panel members drafted them earnestly. The JRF's "Implementing External Independence and Thorough Transparent Supervision ~ 2021 Annual Physical Examination Press Conference for Prison External Inspection Panels" proposed recommended readings of the 2021 1st to 3rd quarter prison external inspection reports and subsequently convened volunteers to evaluate good and poor inspection reports, which can serve as a reference for the Ministry of Justice and the Agency of Corrections in deciding whether to retain members.

Conclusion: Anticipating a Second-Term Prison External Inspection Panel with Greater Independence and Proactivity

At the expiration of the term of the first-term "Prison External Inspection Panel" members, and at the juncture when the selection procedure for second-term members is initiated, the Ministry of Justice pre-announced draft amendments to certain provisions of the Regulations on the Implementation of External Inspection Panels for Prisons and Detention Centers, responding to public expectations for the "Prison External Inspection Panel." This direction is commendable.

However, from the perspective of selecting members with greater independence and proactivity, the current draft amendments still fall short, including: the requirement that non-prison-recommended members constitute a majority may be circumvented; the regulatory approach to conflicts of interest still has problems; the inappropriateness of having the inspected prison propose the list of proposed appointees for members who inspect it; and the unclear standards for retaining first-term members, all of which await handling by the Ministry of Justice. We also anticipate that through the refinement of the selection procedure, the second-term "Prison External Inspection Panel" can become even more independent and proactive.

※ This article was published in Up Media on Oct. 6, 2022