Implications of Taiwan's pending lay judge system
With the passage of the National Judge Act (國民法官法), laypeople will start working with professional judges to render judgments on significant criminal cases starting in 2023
By H Henry Chang, Howard Shiu, and Paula Hsu
After heated debates for years, the National Judge Act (NJA) was finally passed by the Legislative Yuan (Taiwan's Legislature) in July 2020 and promulgated by the president in August 2020. It will come into force on 1 January 2023.
What is the significance of NJA?
The NJA constitutes an unprecedented, revolutionary reform of criminal procedures in Taiwan, which has implications for every citizen and foreign national living in Taiwan.
Under the current Taiwan Criminal Procedures Law, criminal cases are heard and decided solely by professional judges. After the NJA comes into force, six selected laypersons (who do not have a legal background and are the so-called "national judges" in NJA) will join the criminal procedures of a Significant Criminal Case (see definition below) and participate jointly with professional judges in fact-finding, applying the law, and determining sentences. The selected laypeople will be mandatorily required to participate in criminal proceedings, and the judgment rendered will be binding upon the defendants (who might be Taiwan citizens or foreign nationals).
Why did the NJA introduce laypeople into the criminal procedure?
Article 1 of the NJA states that the enactment of the NJA is to "enable the nationals to participate in the criminal procedure with professional judges, advance judicial transparency, reflect the nationals' legitimate legal feelings, enhance the nationals' understanding and trust in the judiciary, and highlight the concept of nationals' sovereignty."
Criticisms against the professional judges for being out of touch with society
Recent findings indicate very low levels of public confidence in Taiwan’s court systems. According to a Judicial Yuan report in July 2019, only 38.6% of Taiwanese believe that the professional judges rule impartially, with only 31.4% of Taiwanese considering that judgments are convincing and made fairly without any bias. Further, several criminal decisions made by professional judges have been criticised for being out of touch with society, failing to meet public expectations, thus severely undermining the credibility of the judiciary.
Take the White Rose Movement in 2010 as an example. Two controversial child molestation judgments, which concerned children aged 3 and 6, triggered widespread protest. In those two cases, the courts ruled that given the fact that the children did not rebel or cry at the time of molestation, the act of such molesters cannot be deemed as against the child's will. The rulings irritated many Taiwanese and attracted widespread criticism that such judgments were rendered against Taiwan people's life experience that a child at the age of 3 or 6 cannot be expected to understand the meaning of the right to sexual autonomy, not to mention, to give consent to said molesters.
Some have indicated that such criticism resulted from the deficiency in the cultivation of professional judges in Taiwan. Some professional judges attend the judge training programme right after they graduate from law school. According to a report released by the Ministry of Justice in March 2017, from 2011-2015, most exam takers who passed the qualification exams for judges and prosecutors were under the age of 25. (In 2015, approximately 70% of the exam-qualifiers were between 21 and 25 years old.) Without much working experience before they started serving in the courts, they sometimes rendered judgments that have left the general public feeling that judges are out of touch with Taiwanese people's ordinary lives. Thus, lawmakers expect that by involving more citizens with life experiences, the new judging panels will help to bring verdicts more in line with public opinions as well as enhance the transparency of sentencing.
Most nationals will qualify as national lay judges
National judges will be randomly chosen from among Taiwan citizens who are over the age of 23 and have lived in the jurisdiction of the District Court for at least four months. Any citizen with a legal-related background, works in the public sector, or is undergoing military service, will be disqualified. Consequently, after the NJA takes effect, most citizens will be qualified to serve as national judges.
Qualified citizens are obliged to join the national judge panel if selected unless they can justify their exemption (for example, if they are over the age of 70, or are having significant difficulties in life). Otherwise, they will face a fine of at least NT$30,000 for failing to show up for duty.
Thus, should employees be selected as national judges or standby national judges, their employers are legally obligated to permit them to take public leave for the time spent in the court, and employers are also prohibited from undertaking any other acts unfavourable to employees on the ground that they are or have once discharged such duties (according to Article 39 of the NJA).
The national judge system applies only to Significant Criminal Cases
Under the NJA, not every criminal case would involve national judges. According to Article 5 of the NJA, only cases involving any deliberation of crimes causing death (Category 1) and criminal cases warranting a prison term of at least ten years (Category 2) (collectively, ‘‘Significant Criminal Cases’’) should include national judges in the judging panel. Juvenile delinquency and drug-related crimes are carved out from the scope of the NJA.
Since the NJA does not make any differentiation, the national judge model will also apply to cases where a foreigner commits such offenses. For instance, a British businessman was accused of killing a newspaper deliveryman in a drunk-driving incident in 2013 but later fled back to the UK. In the future, cases like this will be subject to the NJA since causing death due to drunk driving would fall under Category 1. Moreover, if any foreigner commits a homicide or offenses under the Anti-Corruption Act by bribing civil servants in Taiwan, the case will be included in Category 2.
The National Judge System will operate on a joint review and joint ruling basis
The proposed national judge model would comprise three professional judges and six national judges. Such judges will participate jointly with professional judges in fact-finding, applying the law, and determining sentences.
For a defendant to be found guilty, at least two-thirds of the nine judges, including at least one professional judge, must agree on the defendant's guilt. In determining the penalty, the voting requirement hinges on the sentences charged. As to sentences involving a death penalty, the same two-thirds majority threshold, including a vote from one professional judge, is required. For other penalties, only a majority of at least five of the nine judges, including one professional judge, is required.
The NJA will adopt a phased implementation schedule as follows:
Date of Implementation
1 January 2023
1 January 2026
Employers should be prepared to grant sufficient periods of public leave to employees selected as national judges since it is unclear how long it will take for a national judge to be on the judging panel for any given Significant Criminal Case.
Though the NJA tries to expedite the proceedings by recommending a continuous trial to reduce the selected national judges' time commitment in court, it does not specify any time limit for the judgment of Significant Criminal Cases to be rendered. For an ordinary criminal case ruled in a district court under the general procedures, it should be concluded in 16 months in principle as provided in Article 2 of the Guidelines Governing the Time Limit for Handling Cases at All Levels of Court. However, it is unclear whether the said time limit will be relaxed because of the national judges' participation. Nonetheless, given the complexity of the investigations, rulings, and oral arguments in Significant Criminal Cases, it is reasonable to predict that the goal of resolving such issues expeditiously may be hard to achieve. Hence, the possible extension of criminal proceedings might impose a greater burden on the selected national judges and their employers since the necessary public leave must be granted.
Concerns about national judges' participation
Though the NJA has been promulgated, some questions continue to be raised as to the qualifications and educational background of the national judges and their ability to discharge their duties objectively and fairly. Concerns have been expressed that the quality of judgments made under the national judge model may be inconsistent, and therefore further erode judiciary credibility.
Also, there has been a backlash against the national judge system's adoption, by those who strongly suspect that professional judges would still dominate the criminal proceeding under the national judge system. Critics also argue that professional judges would influence the national judges since it is highly likely that the national judges will tend to acquiesce to the professional judges in higher authority and yield to their instructions or perspectives. From their viewpoints, adopting a national judge system would instead harm people's confidence in the criminal prosecution system.
To mitigate these concerns, legislators have been developing corresponding supporting protocols to enable the national judges to duly discharge their roles, such as requesting professional judges to only share their opinions following the expression of opinions by national judges. In doing so, legislators believe that the national judges would be more comfortable in expressing their views and hopefully achieve the goal to rebuild public trust.
The implications of introducing the National judge System
Despite some disagreements over adopting the national judge system, following the passage of the NJA, it is certain that the national judge system will be deployed. Nevertheless, considering the uncertainties in the national judge system, the NJA also opens the door to future change to improve the model. An ad hoc committee will be formed to evaluate the effectiveness of the national judge practice annually. Based on this evaluation, the Judicial Yuan might then shorten or extend the national judge system's implementation, if necessary.
Given the fact that the NJA is scheduled for implementation on 1 January 2023, other implications for Taiwan's judicial regime will undoubtedly require more observation, and related developments would benefit from further research.
H Henry Chang, Howard Shiu and Paula Hsu are members of Baker McKenzie Taipei