After coming under public scrutiny, the list of nominees to replace retiring members of the Council of Grand Justices had to be changed. Supreme Court Judge Shao Yen-ling (邵燕玲) was one of the nominees on the original list, but her nomination immediately provoked a backlash once it was made public. As a result, Shao quickly declined the nomination and President Ma Ying-jeou (馬英九) proposed jurisprudence professor Tang Te-tsung (湯德宗) in her place.
These events have been quite damaging in two respects.
First, the treatment to Shao and Tang, both of whom are widely respected in legal circles, has been rather poor. Shao is a well-known figure in the legal world, being a Supreme Court justice and having served as president of tribunals. Who would have thought that Ma, having nominated her, would then fail to come to her defense, exposing her to criticism from all sides?
As for Tang, considering the depth and specialization of his knowledge, as well as the strength of his reputation, he certainly has long been one of the most suitable candidates to join the ranks of the grand justices. By accepting the nomination without a complaint, he has done Ma and the public a big favor.
The second problem is that not enough thought was put into the nomination process and as a result, Ma has come under fire. He responded quickly to public opinion by expressing his concern about the choice of nominees. In doing so, he showed a degree of political sensitivity, but at the same time, he has reinforced the popular impression of his administration as one that frequently flip-flops on policy decisions.
If Ma doesn’t agree with those who call Shao a “dinosaur judge,” and if he has confidence in her expertise, he should have supported her nomination all the way and spoken out in her defense. If, on the other hand, he thinks this controversy could undermine the public’s confidence in the grand justices, why didn’t he think of that beforehand?
Did he simply not know about Shao’s background or did he underestimate the political repercussions of choosing someone who had been called a “dinosaur judge?”
I have no way of knowing how those responsible in the Presidential Office decided who would be nominated. Maybe the team charged with drawing up the shortlist thought that all it needed to take into account was the expertise of the nominees, and that there was no need to think about political considerations.
The last time nominations and appointments were made to the Council of Grand Justices, no great controversy ensued, so that might explain why the selection team failed to appreciate the controversy surrounding Shao and the possible result of nominating her. If that is the case, it goes to show that those involved are too naive about the role the grand justices play.
After all, if the job of grand justice were one in which expertise was he sole criterion, why would the Constitution stipulate that justices have to be nominated by the president and approved by the legislature? Why would it be necessary to take into consideration how many men and how many women are on the council?
We should also think about how many highly controversial political matters the grand justices have adjudicated on since the end of martial law. The council has made constitutional interpretations on highly controversial matters, such as whether a vice president can concurrently serve as premier, the Cabinet’s unilateral decision to halt construction of the Fourth Nuclear Power Plant and the constitutionality of the March 19 Shooting Truth Investigation Special Committee.
How could a forum dealing with such controversies be completely non-political?
So why wasn’t public opinion taken into account? Surely those responsible could at least have recommended people who wouldn’t be met with a backlash.
The primary role of the US Supreme Court is to interpret the US constitution. With its experience of contentious battles over nominations to the Supreme Court, the US long ago woke up to the reality that the court has a political role.
So when the time comes to nominate new Supreme Court justices in the US, a great deal of effort is made to find a balance between expertise and politics. Americans know that nominations to the Supreme Court reflect the overall struggle between political forces at the time.
For example, when the overall political mood leans toward liberalism, no matter what the personal inclinations of the president may be, most likely the people nominated to serve as Supreme Court justices are not very conservative and vice versa.
Taiwan’s media usually don’t pay as much attention to the selection of Council of Grand Justices as their US counterparts do to Supreme Court nominations, but on this occasion, the process has set off a public opinion landmine. There was no time to defuse the mine, so it has blown up and caused unnecessary casualties.
The original list of nominees had another shortcoming: Not enough attention was paid to picking people with a variety of backgrounds and fields of expertise. Among the present grand justices, there is only one US-educated constitutional expert — Lin Tzu-yi (林子儀).
With Ma’s original list of nominees, following the retirement of Lin, who is a key figure on the council, there would have been nobody well versed in US constitutional law among all the grand justices. For Taiwan, which is strongly influenced by US constitutional law, this oversight was a major omission and is another reason why may people in legal circles were surprised by the nominations.
One good thing about the change to the list is that now one expert on US constitutional law has been added to the list. The revised list takes better account of political factors and of including people with a variety of expertise.
That can only be a good thing for Taiwan and for the grand justices themselves.
Bruce Liao is an associate professor of law at National Chengchi University.
TRANSLATED BY JULIAN CLEGG
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