Op-Ed | Do Not Play Politics with the Judiciary: Amendments to Detention Laws Must Return to Professional Standards

Recently, the Taiwan People's Party (TPP) proposed a draft amendment to the Code of Criminal Procedure, advocating for the removal of "risk of colluding with accomplices or witnesses" as a legal ground for detention, which has caused an uproar in the legal community. Prosecutor groups directly pointed out that this amendment would "wreak havoc on Taiwan," and the Ministry of Justice also quickly held a press conference yesterday afternoon to strongly criticize it.

The reasons given by the TPP for this proposal are: "Prosecutors often deliberately withhold the questioning of specific accomplices or witnesses, and then use the excuse that important accomplices or witnesses have not yet appeared to apply to the court for the detention of the defendant, thereby detaining people to extract confessions"; they also claimed: "Courts repeatedly rule to detain defendants based on template drafts and vague, empty reasons." Such reasons simply cannot withstand scrutiny.

Comparing with Foreign Legal Systems, Is Such an Amendment Appropriate?

Looking from the perspective of foreign law, Article 112, Paragraph 2, Subparagraph 3 of the German Code of Criminal Procedure also lists "improperly influencing co-defendants, witnesses, or experts" as a ground for detention; Article 60, Paragraph 1 of the Japanese Code of Criminal Procedure and Title 18, Section 3142 of the United States Code designate "destruction of evidence" and "obstructing justice" respectively as grounds for detention, which in practice also encompass the situation of colluding on testimonies. In other words, our country's current provisions also have their basis in comparative law.

In order to evade crime, perpetrators may destroy, forge, or alter "physical evidence"; as for "witnesses," they achieve their purposes through collusion, intimidation, and other means. From the perspective of "preserving evidence," using the avoidance of "collusion" as a ground for detention has a certain degree of legitimacy. No wonder that as soon as the aforementioned proposal by the TPP was released, it faced overwhelming opposition from the Ministry of Justice and prosecutors.

Surge in Fraud Cases Renders the TPP's Legislative Motives Suspect

Referring to the Judicial Yuan's statistical annual reports and reviewing the "detention approval rate" and the "number of approved detentions" over the past 20 years, it can be found that from 2007 to 2014, the number of people ruled for detention by courts plummeted all the way from 11,766 to about 6,000, and remained at a similar level between 2014 and 2022. As for the detention approval rate, it also gradually decreased in waves, reaching a historical low in 2022 (71.16%). However, due to the rampant spread of fraud syndicates, both figures skyrocketed straight back to the levels of 15 years ago between 2023 and 2024, reaching 9,083 people (77.31%); among them, fraud-related cases constituted the vast majority.

Against this background, the absurdity of the TPP's proposal is even more apparent, raising questions about what kind of public interest is truly being considered behind their legislative motives.

The Detention System Is Not Flawless Either

However, our country's detention system and practical operations are not entirely flawless either. In 1995, Judicial Yuan Interpretation No. 392 held that prosecutors should only possess the "right to apply" for detention, while the "right to decide" should be reserved for the courts. Although subsequent legislative amendments have been made in this direction, corresponding detention regulations have not been enacted separately for the different circumstances of "during investigation" and "during trial."

In terms of "collusion," in individual cases under investigation, it may be necessary to prevent the defendant from improperly influencing the testimonies of accomplices and witnesses. However, after prosecutors have gathered sufficient evidence and prosecuted the case in court, and in situations where the prosecutor has already questioned accomplices and witnesses, made transcripts, and obtained audio and video recordings that can serve as evidence, it remains questionable whether "collusion" can still be used as a ground for detention under the same standards.

Criminal Ruling No. 1068 of the Taiwan High Court for 2016 pointed out that in cases where the defendant has already confessed unreservedly to the objective facts of their actions, the original trial court continuing to detain the defendant on the grounds that "other accomplices are at large and there is a risk of collusion" "presents the problem that the testimony of the witness given during the investigation—where the prosecutor had in principle acquired admissibility as evidence—loses its stance as a neutral third party during the trial, thereby 'solidifying' the witness testimony for one of the parties, namely the prosecutor."

Consequently, the court revoked the detention decision of the original instance.

Debates on Legislative Amendments Should Return to Professionalism

From this perspective, at least regarding "detention during trial" based on the ground of "collusion," there is certainly room for review and discussion in practice. Alongside the soaring detention approval rates and numbers of detainees over the past two years, apart from attributing this to the "crackdown on fraud," we must remain vigilant and carefully verify whether the "principle of last resort" for detention is being implemented. For instance, the recent prevalence of "communication software" and the investigative authorities' difficulties in gathering evidence from it have also become reasons for courts to detain defendants (in plain terms: defendants find it too easy to collude via communication software, yet the police and prosecutors find it very difficult to investigate). The handling and evaluation of this social fact change by court practice are also heavily discussed in legal academia.

Regrettably, the TPP's proposal this time attempts to comprehensively delete detention based on the ground of "collusion" relying merely on feeble reasons, without considering whether corresponding supporting measures for "preserving evidence" exist in current practice. The shoddy level of its legislative quality is truly staggering. A legislative proposal of this quality not only exposes its own inadequacies but may also compress the space for rational discussion on judicial reform issues, which is deeply regrettable.

※ This article was published in ETtoday News Cloud on August 25, 2025