A Response to Margaret Lewis by Nigel Li

by Nigel Li

[Nigel Li is a prominent lawyer and legal scholar in Taiwan]

Professor Lewis’ article comes timely as a 10-year review of the half-baked criminal procedure reforms in Taiwan, particularly in a vacuum of rigorous academic attention to an ambitious attempt to transplant the common-law adversarial system to a soil of civil-law inquisitorial adjudication by a rising young democracy seeking a new identity in the global village.  Professor Lewis unveils with remarkable, insightful precision the hard fact that the reforms may have adopted a two-track system that was not fully conceived at the outset.  The overlooked challenge of efficiency-driven reforms, in tandem with the adversarial system, highlights a compromise between the reformers and their powerful and persistent opponents that creates the appearance of a serious reform but leaves substantially intact the turf that had been occupied by the prosecution before the Grand Justices’ 1995 decision stripped off the prosecutors’ monopoly on imposing pre-indictment detention.

The outgrowth of the 1995 decision, among others, was the 1999 conference launching judicial reform and setting the stage for the new adversarial system, but the needed infrastructure for its success was neglected.  Most in all the relevant four sectors, including the judges, the prosecutors, the lawyers and the law professors who provide law-school education, are not prepared in both the spirit and skills that the new system demands.  To date, strict application of newly introduced evidence rules is still a novel idea in the day-to-day judicial practice.  Many judges and lawyers are not well versed in the rules for cross examination.  Meanwhile, government-employed stenographers are not trained to produce verbatim transcripts in court without the aid of any apparatus to ensure real time, mechanical recordation, which frustrates the swift operation of cross examination.

With the prevalent perception of prosecutors as judge-equivalent within the legal community, institutional resistance from within has been a core problem in the course of cultivating the new system that distinguishes judges and prosecutors in all respects.  The common thread of several “efficiency-driven procedures” is to retain the dominance of the prosecution’s power in the criminal justice system.  In a nutshell, introducing the adversarial system is a part of the serious judicial reform to redefine the powers and functions of the court.  The judiciary is to recover its domain originally reserved under the Constitution but once wrested away by the executive branch via the over-expanded functions of the prosecution.  Far from claiming any complacency that the new system now requires no more than a fine tuning, as Professor Lewis rightly points out, the new system must be scrutinized.  Serious commitments must be made for the reform to charge ahead.  Changing course and charting a different path is not an alternative, however, since the momentum generated by the Grand Justices through many critical constitutional interpretations points to a way of no return.

http://opiniojuris.org/2009/04/17/a-response-to-margaret-lewis-by-nigel-li/

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