The legal system is still stuck in the Qing Dynasty

• By Huan Tong-shong 黃東熊

The Constitutional Court ruled on the constitutionality of the death penalty on Friday last week. Although the ruling makes sense, many rejected the court’s decision in this case.

As an academic who teaches introductory criminal procedure courses, I am personally unhappy with the ruling. However, the result is still acceptable.

Compared to the laws of other advanced democracies, the Code of Criminal Procedure (刑事訴訟法) is outdated. The conduct of criminal trials contradicts the provisions of the law. To this day, Taiwan continues to conduct indirect and written hearings, a process that dates back to the Qing Dynasty.

For a deeper understanding, read the essay “The Relationship between Constitutional Law and Criminal Procedure Code” (憲法與刑事訴訟法之關係) in The Code of Criminal Procedure Review, Volume 3, Expanded Edition (刑事訴訟法研究、第).三冊、增訂版).

In the second half of the 18th century, Britain, the United States, France, Germany, and other Western countries introduced laws similar to those of the Qing Dynasty. They all used indirect or written hearings in criminal cases.

Despite several hundred years of judicial experience, it has been found that these indirect and written hearings have resulted in numerous mistrials and wrong decisions. At the end of the 18th century and with the spread of more democratic concepts, direct and oral hearings were introduced to reduce the frequency of mistrials.

The most effective of the direct and oral hearings is the jury trial. However, even with the introduction of such a system, incorrect procedures and wrong decisions could not be completely avoided. In order to avoid mistrials and the conviction of innocent people, a legal motto and ethos was established which was to be willing to release ten guilty people rather than convict one innocent person.

Under these circumstances, Taiwan’s criminal procedures are still guided by the logic of the indirect and written hearing procedures of the Qing Dynasty. Taiwan’s criminal judges and prosecutors adhere to the ideology of the White Terror-era court system, which operates under martial law.

Contrary to the above legal motto, Taiwan’s judicial system has the concept that it would rather convict ten innocent people than release one guilty person.

Consequently, there has been no shortage of mistrials involving the conviction of innocent people.

After a wrongful conviction that resulted in the death penalty, nothing can be done to remedy the situation once the sentence has been carried out. From this point of view, the decision of the Constitutional Court in this matter must ultimately be accepted. Hopefully wise opponents of the death penalty can understand this position.

Abolishing or maintaining the death penalty relies on the good nature of Taiwanese people. In this matter, the legislature should be the real arbiter of the constitutionality of the death penalty – not the courts.

At the same time, the Constitutional Court is essentially a specialist court – a “court” in the narrower sense of the word, also called a “tribunal”. This special tribunal is a product of an authoritarian system. Such a specialized judicial body should not exist in a democracy.

If Supreme Court justices still do not understand the depth of constitutional law, they should not sit on the highest court in the land.

The Constitutional Court should be abolished and its role should be taken over by the Supreme Court with judges qualified for this position. This is the right way forward.

Huan Tong-shong is a former president of National Chung Hsing University.

Translated by Tim Smith