Jury System is First Step in Checking Power of Judges

Jury System is First Step in Checking Power of Judges
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
August 1, 2011

The Judicial Yuan has approved a "Jury System" pilot program. The system will allow the public limited participation in the trial process. But no sooner were the plans were announced, then critics from all walks of life weighed in. Future passage and implementation of the system may be difficult.

A government can have a tripartite or quinpartite power structure. But judicial power is unique. Only judges may exercise this power, free from any and all interference. Past judicial reform efforts strove for judicial independence. They abolished the "by the book system." They established a system in which judges determined personnel assignments. This prevented "higher ups" and "still higher ups" from interfering with court judgments. Today, we have an independent justice system that conforms to the Rule of Law.

When a trial judge's power is free from any and all interference, the practical result is trial judge absolutism. Judges are virtually gods in their courtrooms. Judges have the final say on everything. As a result, the success or failure of the trial process will hinge on the individual character of judges. An individual judge may have a particular bias or moral defect. He may be clearly incompetent. But his judicial authority will be immune to any checks or balances. This may lead to wrongful convictions and ridiculous sentences. It may lead to controversial, erroneous, and absurd rulings that cast doubt on the credibility of the justice system. Recently, so-called "dinosaur judges" were the target of ridicule. Other judges with strong political colors have handed down highly controversial rulings. Some judges have even practiced corruption, inviting massive criticism. This shows that our pursuit of judicial independence has gone too far. Today the problem is not insufficient judicial independence. Today the problem is a surfeit of judicial tyranny.

In our effort to arrive at a workable system, we have gone from seeking balance to avoiding tyranny. Our efforts were worthwhile. But before we introduce a new system, we must first consider social reality. We must not be Quixotic. When the Judicial Yuan introduced its "Jury System," some compared it to the Anglo-American jury system, or the German assessor/lay judges system. They said that "Such a jury system is absurd. The public cannot be trusted." Leave aside the issue of whether the system is constitutional. Any attempt to introduce such an idealized system in the near term, would be extremely difficult.

First consider the Anglo-American jury system. The jury has the power to rule on the facts of the case. It shares power with the trial judge, consistent with the applicable laws. Jurors may be selected by an elaborate selection procedure. They may be strictly sequestered. They may be receive strict instructions from judges. But a jury consisting of ordinary citizens remains vulnerable to undue influences. They may arrive at unexpected verdicts. This has often occurred in the UK and the US. If the jury system is adopted here, given our social realities, a jury would be unlikely to match Anglo-American standards. The jury system does not always work in the UK and the US. How well would it work on Taiwan? This is not a question of whether we trust the people. This is a question of whether we can afford to gamble with an individual's rights.

Now consider the German assessor/lay judges system. Assessors, along with judges, function as decision-makers during trials. But not all cases use assessors. Only misdemeanors and lower court cases use assessors. Felony cases may include assessors, but fewer assessors than judges. Nor do they take part in the Final Appeal stage. Assessor selection is stricter than jury selection. Given the situation on Taiwan, it would probably be even more difficult to establish a trustworthy selection assessor selection process.

We must consider social reality. The "jury system" is the first step in checking and balancing the power of trial judges. Once we implement such a system, we must see how well it works. We can then choose either the jury system, the assessor system, or some other system. This is the way to arrive at a reliable solution.

We approve of the Judicial Yuan's move to shatter the conservative mindset of the justice system. It has taken an important first step. But such a pilot program must be strengthened. For example, according to the published data, once jurors have been selected, no mechanism prevents undue influence. The jurors have only the right to make recommendations. But while the new system is being tested, jury comments may still exert considerable pressure on judges. We must guard against undue influence. It must be punished. Citizens with a senior high education or better. who are at least 23 years old, qualify as jurors. Given current social realities, this is probably much too lenient. Suppose the judge is 26, and the juror is 23? How reassuring would such a combination be? The devil is in the details. The proposed system must be carefully evaluated.

觀審制是平衡法官權力的第一步
【聯合報╱社論】 2011.08.01

司法院通過「人民觀審制」試行方案，將推動有限度的民眾參與審判的新制度。計劃一宣布，各界批評聲浪即如翻江倒海而來，未來立法及執行要闖的關卡恐怕不少。

不論三權還是五權，司法權的主要特色當然是法官獨立審判，不受任何干涉。過去司法改革長期的努力是追求審判獨立，所以廢止「書類送閱制度」，也建立起法官參與的人事制度，阻斷了「上級、上上級」干預判決的各種管道；至今，我國法官審判獨立，已可謂達到法治國家的標準。

當法官的審判權力不受任何干涉時，在審理實務上其實就是法官極權，法官等於是「法庭裡的上帝」，一切法官說了算。這樣一來，審判的成敗，法官個人因素即成了關鍵。倘若法官個人有特定偏見，或有道德瑕疵，甚至明顯能力不足，其手中的審判權力又無任何制衡機制，即可能作出引發嚴重爭議的錯判、謬判，終致打擊司法信譽。近來所謂「恐龍法官」之譏，或部分政治色彩濃烈法官爭議極大的舉措，甚至法官貪污案引起巨大的批評等等現象，都說明了我們追求司法獨立已經進入物極必反的情境，如今是「不患司法不獨立，而患其太獨裁」。

因此，從平衡過於極權的審判權力而言，試著找出任何可行制度的努力，都值得支持；亦因如此，我們在引進或創設任何新的制度時，都必須先考慮社會實況，不可過於理想化。司法院的「人民觀審制」推出之後，有人以英美採用的「陪審制」或德國採行的「參審制」加以比較，指「人民觀審制莫名其妙、對人民不信任」云云。撇開違憲爭議不談，那些「理想制度」若立即引進，恐怕真的有些困難。

先看英美的「陪審制」。因為陪審團有決定案件事實成立與否的權力，與主持審判和適用法律的法官可謂做到了分權；但平民組成的陪審團，儘管有種種挑選過程、嚴加隔離、法官的指導等等防範機制，仍確實容易受到各種訴訟花招的左右，而作出意外的決定，在英美也有很多檢討。倘若現在就將陪審制搬來我國，大概沒有人敢相信以我們的社會實況，陪審團的運作能夠達到英美的標準。英美的實踐都不理想了，能想像我們若採陪審團會是什麼模樣嗎？這不是「信任人民與否」的問題，而是不能拿案件和個人權益來賭博。

再說德國「參審制」。參審員像法官一樣參與審判和判決的作成，但並不是所有案件都有參審員，而是在刑度較輕的案件，下級法院有參審員；重罪案件即使有參審員，人數亦低於法官，且終審不採參審員。由於參審員的要求比陪審員更高，在我國現況，恐怕更難安排值得信任的選派機制。

我們認為，考量社會實況之後，以「人民觀審制」作為踏出平衡法官審判權力的第一步，再觀察實施成果，作為更進一步選擇「陪審制」或「參審制」，或任何其他可行制度的基礎，應該算是從無到有的相對穩健的方案。

我們贊成司法院打破司法界的保守習慣，踏出這重要的第一步，但認為該試行方案還是有許多地方必須加強。例如，依公布資料，觀審員選定之後，似無防範不當影響的機制；雖然觀審員只有建議權，但新制試行，觀審員的意見，對法官還是有很大壓力的。不當影響必須防範，甚至給予處罰。再如，一般而言，高中程度以上國民、滿二十三歲即有擔任資格；以現況何言，恐怕過於寬泛。倘若法官二十六歲、觀審員二十三歲，這樣的組合能讓人放心嗎？細節影響成敗，尚待仔細研議。