Taiwan’s legal system has undergone rapid reforms during the nation’s democratization over the past 30 years. Some of them involved necessary changes that people found hard to promote, and the “pyramidization” of criminal proceedings is one of them.
The first National Conference on Judicial Reform in 1999 decided to strengthen the first instance, make the second instance ex post facto and have the third adopt strict trial of law.
This direction was correct and can solve long-term problems in Taiwan’s criminal proceedings, such as lengthy procedures and court proceedings becoming mere formality, with some cases even becoming stuck in the quagmire of the court system for several decades.
However, the attempt to implement this reform immediately after the decision was made aroused concerns from the legal profession and judicial reform groups. They argued that it would take time to build a solid first instance. Otherwise, once the third instance was tightened and the second instance of appeal was restricted, a large number of cases would be piled up in the first instance.
In the end, the reform was suspended, as there was insufficient personnel and capacity at that time to deal with the first instance for the new system. If sudden implementation had gone ahead as originally planned, it would have been the public and defendants that would have had to pay the price.
By 2017, the second National Conference on Judicial Reform once again concluded that a “pyramid system” should be adopted in criminal proceedings, and required the Judicial Yuan to achieve this goal by 2025.
Between the two conferences, the first instance of criminal proceedings in Taiwan has undergone tremendous changes, including the introduction of a cross-examination system, revitalization of court activities of the first instance, the establishment of a legal aid system to protect the defendants’ right to defense and changing the first instance from the single-judge adjudication system to collegial court system.
At the same time, the role of the third instance had been gradually adjusted to transform into a real trial of law, in line with the system of grand chambers, to reduce the involvement of the Supreme Court in the judgement of facts, and to highlight its function of unifying interpretation of laws and correcting violations of litigation procedures.
Overdue for more than two decades, the Judicial Yuan finally proposed a draft amendment for the pyramidization of criminal proceedings. As a member of the National Conference on Judicial Reform, I am very pleased.
The draft would build a pyramidal structure of the court system and make the third instance a real trial of law. How should it be done? The solution proposed by the Judicial Yuan is to adjust the grounds for appeal to the third instance and add a discretionary review.
To be more specific, the original grounds of appeal of the third instance will be divided into two parts, with one part remaining in the grounds of appeal, and the other moved to the discretionary review.
It means that correct judgement and procedural fairness would be ensured, yet should there be cases not meeting the requirements as grounds for appeal, the exception can be made in the discretionary review to allow the parties to appeal.
The amendment has unexpectedly drawn voices of opposition, saying that the Judicial Yuan was “smuggling” the discretionary review into the bill to “allow the Supreme Court to choose cases.”
This opinion derives from a misunderstanding. If the grounds for appeal of the third instance are not adjusted, the number of cases for the third instance would still be overwhelming, and could turn the court system into cylinder-shaped or even inverted-triangle-shaped, far from being a pyramidal structure.
However, if there is no discretionary review, but to reduce the grounds for the third-instance appeal, the impact on the parties would be even more unfavorable. Discretionary review is actually to open another door of appeals, rather than closing the window of appeals.
All the legal system proposals have an adaptation period. Since pyramidization of proceedings is the only way to go, adjusting the ground of appeal coupled with the discretionary review can be a solution. Or, if one disagrees, they can put forward more appropriate suggestions to reduce the number of third-instance cases, instead of halting the progress of amending the law. Otherwise, is it not legislative fraud to refuse to adjust the structure of the third instance now that the first instance has been expanded to a collegial system for 20 years?
Legal practitioners and academics should review the bill together and cooperate to promote the amendment, so that it would be in line with the resolutions of the two judicial reform conferences and the expectations of all walks of life for proceeding reform.
Carol Lin is a distinguished professor of law at National Chiao Tung University’s School of Law and a member of the National Conference on Judicial Reform.
Translated by Lin Lee-kai
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