President Chen Shui-bian's (
With only a few months remaining until next year's presidential elections, the Democratic Progressive Party (DPP) and the Chinese Nationalist Party (KMT) are contesting every inch of territory. Taking a closer look, however, we see that the problem begins with the judiciary itself as the DPP and the KMT presidential candidates are either under judicial investigation or at trial. This creates an awkward situation that has resulted in intensifying criticism and questioning of the judiciary, while Chen's repeated accusations have further complicated the matter by leading to guesswork and debate.
Maybe the doubts about the political affiliations of members of the judiciary will regress into the same kind of political bickering that has developed over the investigation of the KMT's stolen party assets. I wonder if we all shouldn't seize upon this issue as an opportunity to calmly consider the fundamental logic underlying the debate.
Article 81 of the Constitution stipulates that "Judges shall hold office for life. No judge shall be removed from office unless he has been guilty of a criminal offense or subjected to disciplinary measures, or declared to be under interdiction. No judge shall, except in accordance with law, be suspended or transferred or have his salary reduced."
Simply put, judges enjoy very strong protection, and unless they decide to leave their position voluntarily, it is very difficult to disqualify a judge. Constitutional Interpretation No.13 by the Council of Grand Justices stipulates that "the guarantee of tenured prosecutors, according to Article 82 of the Constitution and Article 40, Paragraph 2, of the Court Organic Act, apart from their transfer, is the same as that of tenured judges."
Participation in a political party is part of the right to participate in government and political affairs. Nevertheless, the freedom to join a party can still be legally restricted to the extent required to promote public interest. This is also allowed for in Article 23 of the Constitution.
Why can't we demand that all judicial officers, including judges and prosecutors, leave any political parties before taking up their posts? Given the judges' privileges of holding office for life, could this restriction be accepted?
Going one step further, what substantive impact would disengaging from partisan activities have on judicial officers? Don't we all agree that any member of the judiciary engaging in politics must first leave their position in the judiciary?
During the authoritarian period, there was nothing strange about judicial officers joining a political party. It has now been more than 20 years since martial law was lifted and Taiwan has moved into the democratic era, and yet the political affiliations of judicial officers are now being questioned.
Should we really not make some effort to bring about judicial impartiality? At the very least, shouldn't we push for some kind of collective decision among judicial officers to annul party membership in order to maintain a clean reputation that would allow them to silence any critics. Better that than just following the indifferent recommendation from the Judicial Yuan and the Ministry of Justice that judges and prosecutors stand above party affiliations and act independently and according to the law.
The criticism comes from the suspicion that judges and prosecutors do not follow this recommendation, so what use is this kind of policy statement?
The Control Yuan, for example, demands that before Control Yuan members take office, they must cease any party activities in order to maintain neutrality while performing their duties so as to remain above suspicion. Since the politically appointed members of the Control Yuan with their limited terms are banned from party activities so as to erase any doubts regarding their party affiliations, shouldn't judges and prosecutors with their lifetime terms and even higher demands of professionalism follow an even higher set of standards?
If the leaders of the judiciary continue to rely on a policy statement that is insufficient to allay concerns, couldn't reform-minded judges and prosecutors stand up and declare that all judicial officers should withdraw completely from political parties? This would leave critics without anything to say and it would also fulfill the public's expectations for judicial reform.
Lin Feng-jeng is the executive director of the Judicial Reform Foundation.
Translated by Lin Ya-ti
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