Jury System is First Step in Checking Power of Judges
United Daily News editorial (Taipei, Taiwan, ROC)
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.