Wed, Oct 10, 2007 - Page 8 News List

Reforms should prioritize people

By Lin Feng-cheng 林峰正

Weng Yueh-sheng (翁岳生) retired as president of the Judicial Yuan on Sept. 30 on completion of his full term. In the preface to his book Eight Years of Judicial Reform, Weng wrote: "Judicial reform was instigated on behalf of the people. It is only with the support of the people that reforms will have momentum, and only with the trust of the people that they can be kept alive."

The idea that, in a democratized nation like Taiwan, the judiciary exists for the people paints a good picture of the fundamental values that underlie the judicial system. However, such noble words refer only to the ideal itself and do not adequately represent the reality.

Under Weng's tenure, many dissenting voices across the social spectrum were heard over political and judicial issues that he failed to address promptly. Indeed, it wouldn't be an exaggeration to say that the wave of criticism was overwhelming.

However, if Weng's achievements during his tenure as judicial president were to be appraised on this alone, I'm afraid we would be ignoring the wider story. The above views are taken from the perspective of authority, but in this article I will try to look at things from the perspective of public interest.

A major amendment was made to Taiwan's Criminal Procedure Law (刑事訴訟法) in February 2003, in which the refined adversary system was adopted in line with the conclusions of the 1999 National Conference on Judicial Reform. In the past, on the recommendation of the public prosecution, the proceedings would be handed over to the judge, who had the sole authority to review and pass judgment.

But since the amendment, the prosecution is required to be present in court to present evidence and, together with defense lawyers, cross examine the witnesses to verify the reliability of their testimony. This enables the judge to hear the case more objectively as a third party to the proceedings to ensure an impartial verdict. Changes of this kind made court proceedings more transparent and helped improve public perception of the judicial system.

In April last year, the Judicial Yuan made a further amendment to the Criminal Procedure Law, placing restrictions on the ability of the public to bring litigation in an effort to lighten the workload of judges in courts of second instance. However, this met a huge public backlash as the integrity of decisions delivered in the courts of first instance had yet to come up to the level required to earn the public's trust.

This somewhat rash amendment had taken only the judges' case burden into consideration, raising the threshold of what could be taken to court and restricting the public's right to litigate, therefore making it difficult for the people to see flawed rulings put right. What had happened to the public's constitutionally guaranteed right to litigation?

The amendment finally foundered because of public obstruction. It did, however, succeed in bringing to light serious issues related to the question of whether judicial reform was actually being conducted with the public interest in mind. Put another way, if the starting point for judicial reform was simply to lighten the case burden for judges, it could only become increasingly divorced from the people.

Another case in point is the ongoing legislation of the Judges' Act (法官法).

Article 81 of the Constitution states that judges enjoy life-long tenure. It is therefore almost impossible to get rid of judges, including bad ones. A quick look at the disciplinary actions meted out by the Judicial Yuan's Committee on Disciplinary Sanctions of Functionaries over the past decade shows that fewer than 40 judges and prosecutors were removed from their positions as punishment.

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