Written by M. Bob Kao.
Taiwan is governed by civil law, with a legal system based on that of Continental Europe. It uses professional judges and not juries to hear and decide cases like other civil law systems historically. The jury system is associated with the English common law tradition that was spread by the expansion of the British Empire. While the United States, a common law country, uses jury trials extensively in both civil and criminal trials, other common law countries have either abandoned jury trials altogether or limited their use to criminal proceedings.
Many civil law countries also have some type of lay participation in their criminal justice systems. Asia has been behind the curve in this regard, but Korea and Japan implemented their own form of jury trials in 2008 and 2009 respectively, and the Chinese Communist Party Central Committee’s Fourth Plenum in October 2014 also called for a common law style jury system to replace the current lay assessor system.
Taiwan has considered implementing a lay assessor or jury system in criminal proceedings for decades. The Judicial Yuan first proposed legislation in 1987, but it and other proposals under both KMT and DPP administrations never gained traction. The latest Judicial Yuan and Executive Yuan push began with a new bill in 2012. Despite the Judicial Yuan’s organising more than thirty mock jury trials experimenting with the procedures spelled out in the legislation, the bill has not progressed in the Legislative Yuan in large part due to public opposition.
Tsai Ing-wen’s judicial reform platform stresses citizen participation in the judiciary through jury trials. With her expected victory and the DPP having a realistic opportunity to garner a majority in the Legislative Yuan in the upcoming elections, it is likely that implementing a jury system will be an achievable goal in the near future. Though Tsai’s platform is purposely vague, it is probable that her idea of a jury system will be drastically different from the current Judicial Yuan version supported by the KMT.
In general, the KMT envisions a jury system with limited public participation that does not actually give jurors any actual power. The Judicial Yuan bill calls for five official jurors and two alternates who would participate in criminal trials alongside District Court judges. The jurors and judges would enter into discussions through which jurors would give their opinions on guilt and sentencing. Juries would only be used in cases with charges that mandate a minimum of seven years imprisonment or are related to intentionally causing death. Under this proposal, judges would have the ultimate discretion and would be able to disregard the jury as long as they provide their reasoning in the opinion.
In the other camp are the Taiwan Jury Association and many members of the DPP who want to implement an American-style jury system. In general, they advocate for 12-member juries that would have the ultimate say in fact-finding and deciding the guilt of the defendants through unanimous decisions. Proponents have run their own mock jury trials using procedures in their draft bill, and they vehemently oppose the Judicial Yuan’s proposal because it would not give any real power to the people. The major obstacle this version faces is that it may require a constitutional amendment, as ROC Constitution Article 80 states: ‘Judges shall be above partisanship and shall, in accordance with law, hold trials independently, free from any interference.’
While it is most likely that the Judicial Yuan’s current proposal will be rejected by the new administration, it remains to be seen whether Tsai and DPP legislators will advocate for an American-style jury system or something different altogether. Regardless of the ultimate proposal, there are many issues, a handful of which will be briefly raised here, that need to be considered and resolved by lawmakers, scholars, and the public so that the system that is ultimately implemented will truly facilitate citizen participation in the criminal justice system.
First, how will jurors be selected? The process will be random, but will jurors be chosen based on their household registration? Many people in Taiwan do not live where they are registered due to work or school, so it may be inconvenient and expensive for them. Can a fairer system be implemented that will allow jurors to serve near their actual residence instead of their household registration? This discussion may potentially lead to other related conversations because it may force the current voting mechanism that is based on household registration to be questioned.
Second, what will be the qualifications to be a juror? Will the minimum age be 18, the age of majority for criminal law purposes, or 20, the age of majority for civil law purposes? The current Judicial Yuan proposal mandates that jury members have to be at least 23 years old, the minimum age to be a legislative candidate. Will immigrants be able to participate once they obtain citizenship, or will there be a waiting period like the one for naturalised citizens running for office? This may be a particularly thorny issue because some people may advocate for treating immigrants from China differently from other immigrants, which may further politicise the judicial reform debate.
Third, how will employers be compelled to follow the law and allow their employees to attend trial? While employers will be legally mandated to excuse their workers, this may not translate into practice given the rampant violation of labour and employment laws in Taiwan. Will people have to choose between participating in the judicial process and their livelihood? There is the risk that employers will advise employees to lie to be dismissed from jury duty, or, even scarier, the possibility that employers will pressure employees to decide cases in certain ways. Implementing a successful criminal jury system in Taiwan will require robust enforcement of workers’ rights.
Fourth, how will the system prevent jurors from being bribed or otherwise inappropriately influenced by external forces? One of the main justifications for a jury system is that many believe judges, prosecutors, and the judicial system are corrupt. If judges, who have relatively high standings in society and comfortable salaries, can be bought, what about the average citizen? Will it not be easier to corrupt jury members who are not shielded by the judicial apparatus and who may possibly be in more financial need? Enforcement of bribery laws will have to be strict, and the public and judiciary must be prepared for the possibility that a jury system will actually lead to more corruption in Taiwan.
Fifth, how will the identities and safety of the jurors be protected? Although it will be illegal to publicise the identities of the jury members, there will still be concerns as to whether the Taiwanese media, with its relatively low journalistic standards, will flout the law and report on the private lives of jurors, especially in high profile cases. It will be even harder to prevent other private citizens from posting personal information online. This invasion of privacy will place undue influence on the jury and possibly taint the process. The media must be vigilantly regulated to ensure the anonymity and safety of jurors so they can do their jobs without harassment.
These are just some of the issues that need to be considered before a jury system can be implemented in Taiwan, not to mention numerous technical ones concerning the actual trial procedure that were not broached here. Resolving these issues may require amendments of other laws or at least an evaluation of how current laws are implemented or enforced. While it may be popular for Tsai to ride the wave of public sentiments against judges, prosecutors, and the judiciary and call for citizen participation in the judiciary, whatever reforms she and the DPP propose after the elections must not be implemented in haste. A jury system should be established in Taiwan only after due consideration of potential obstacles so as to truly effectuate public participation in the judiciary. At the same time, it must be remembered that jury trials are not a panacea to all the ills of the Taiwanese judiciary.
Bob Kao is a PhD candidate at the Centre for Commercial Law Studies, Queen Mary University of London and a former public interest attorney in California. He blogs at Taiwan Law Blog.