Wed, Jan 19, 2011 page8

• Draft judges’ law is still a ‘dinosaur’

  • By Lin Feng-jeng 林峰正
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  Jan. 11 was Law Day in Taiwan. By coincidence, the draft judges’ law, delayed for more than 20 years, passed its first reading in the legislature shortly before Law Day. Barring unforeseen circumstances, the bill should be passed into law during the next legislative session.

  The problem is that if the bill goes through as it stands, it will not only fail to get rid of “dinosaur” judges, but will incubate, hatch and foster even more “dinosaur” judges.

  Take for example the mechanism for removing incompetent judges from their posts or the system for evaluating judges. The Judicial Yuan unabashedly insists on keeping the evaluation system within its own walls and even rejects demands from civic groups that representatives of judges, prosecutors, lawyers and other professional groups that sit on evaluation committees be elected by those groups. Instead, the Judicial Yuan wants to give its own president, the Ministry of Justice and the Bar Association the power to appoint committee members.

  The draft law also provides that the six evaluation committee members who are supposed to be academics and upstanding citizens would be selected by having the legislature, the Control Yuan and the Judicial Yuan each appoint two people.

  Anyone can see that this arrangement gives the nation’s president, whose party holds a majority of seats in the legislature and who has the power to appoint the chiefs of the Control and Judicial yuans, complete control over the appointment of all six academic and -upstanding citizen committee members. That would clearly not be in keeping with the political principles of checks and balances and division of power.

  Even more absurdly, the wording of the current draft of the law flies in the face of a consensus that had existed between civic groups and the Judicial Yuan for many years, in that the bill does not allow parties to judicial cases to lodge complaints about the judges who handle their cases.

  So the existing bill completely denies victims of miscarriages of justice the possibility of directly protesting their innocence. At the same time, the Judicial Yuan insists that a judge’s opinion on the application of law cannot serve as the basis for his or her evaluation. In other words, if there is a “dinosaur” judge, nothing can be done about it.

  Although the Judicial Yuan has accepted the suggestion by civic groups that all judges be evaluated at regular periods, it only agreed that these evaluations be done every five years. Instead of having the evaluations done by a judge evaluation committee including external members, the Judicial Yuan wants to arrange them itself, and it is not willing to make the evaluation results public. Furthermore, the adjudicators of the judicial disciplinary court that would make a final decision on disciplinary measures against judges would themselves all be judges.

  It can be seen that the system for evaluating judges in the draft law does not offer anything new compared with the existing system, under which members of the public can report judges directly to the Control Yuan. In fact, it may even be a step backward.

  The call from civic groups for all judges to be subject to evaluation has been sidetracked into a closed-door procedure within the confines of the Judicial Yuan, rendering it completely ineffective as a means of oversight. It also runs contrary to the promise made by President Ma Ying-jeou (馬英九) in the “declaration of human rights for the new century” that formed part of his election campaign to “weed out judges who abuse their powers or are negligent through a system of regular evaluations conducted by people from various professional backgrounds and involving public participation.”

  The hoped-for system for evaluating judges and weeding out the bad ones has been changed beyond recognition, leaving “dinosaur” judges with nothing to fear. Lawmakers have shown no sincere will to promote reform of the mechanism for selecting new judges, because the Judicial Yuan is unwilling to abolish the system of selecting judges through examinations.

  Most people would agree that this system is not effective in choosing truly qualified legal minds to serve on the bench, yet the Judicial Yuan, for the sake of its own interests and convenience, is not willing to dispense with this self-serving arrangement. The result will likely be that generation after generation of “dinosaur” judges will continue to come to office through these exams.

  There are other key reform issues to do with the judges’ law. Will external members sit on the Judicial Personnel Review Committee, which is in charge of important judicial personnel matters within the Judicial Yuan, such as judge assignments and senior judge selection, so as to promote transparency and prevent pernicious practices such as officials covering up for each other?

  Another problem is that judge training is done by the Ministry of Justice rather than by the Judicial Yuan, giving the executive arm of the government a free hand to “train” the judiciary. These and other deeply ingrained defects are key issues that will determine whether the proposed judges’ law can achieve its purpose, but they have all been shot down, or at least not given the attention they deserve, in the procedure leading to the bill’s first reading in the legislature.

  Everyone says we should get rid of “dinosaur” judges, but if the draft judges’ law goes ahead in the form that passed its first reading the other day, we might as well tell the public to give up any hope of that. The countdown to the bill’s third reading and passage into law has already started, so let’s all join together to say: “We don’t want ‘dinosaur’ judges and we don’t want a ‘dinosaur’ judges’ law!”

  Lin Feng-jeng is a lawyer and executive director of the Judicial Reform Foundation.

  TRANSLATED BY JULIAN CLEGG
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