The National Congress on Judicial Reform ended in turmoil on Saturday last week. Not only is the validity of its decisions questionable, its proposed changes might be impossible to enforce, as there is no law governing their implementation.
In 1999, then-Japanese prime minister Keizo Obuchi proposed judicial reform to prepare for the challenges of the 21st century. The process was conducted cautiously; to ensure that the reform covered all aspects of the judicial system, the Japanese parliament first passed a law governing the forming of a Judicial Reform Council under the Cabinet.
The council that was formed consisted of 13 civic representatives — two law professors, three lawyers and eight representatives from economic, workers’ rights, business, consumer rights and other groups. Their job was to overhaul Japan’s judicial system and propose changes.
After two years of inspections, research and meetings with various groups, they proposed three broad goals for judicial reform: The reforms should meet the expectations of the general public, they should democratize the judiciary and the quality of legal professionals should be improved. Based on these overarching goals, the council also proposed concrete measures aimed at achieving these goals.
Since the legal changes would involve many government departments, the National Diet — the Japanese parliament — in 2001 passed a law governing the implementation of the judicial reform measures.
Following the legislation, an office in charge of implementing the laws was formed under the Cabinet. Headed by the prime minister, and with the minister of justice serving as its deputy leader, the office comprised many Cabinet members and had all the resources it needed to carry out the judicial reforms.
By contrast, Taiwan’s National Congress on Judicial Reform was formed under orders of the president. There was no law governing the time frame, committee structure, procedures or how the proposals were formulated. Instead, all decisions were made according to the opinions of those in charge.
Unlike the Japanese council, which was authorized by law to access documents, interview staff and inspect authorities and organs, the congress had no authority to inspect government agencies, interview people or gain access to important documents.
As a result, it had to passively accept documentation that agencies provided, without knowing if it was complete or doctored.
Since the congress is merely consultative in nature, the government would need to pass a law to implement its proposed changes. Otherwise, many of the conclusions may never be implemented.
Having a law in place for reform proposals is especially important considering the complexity and scale of judicial reform, which entails changes to laws, incorporating resources across departments and revamping the political system.
This is why Japan established an office consisting of key Cabinet members to promote judicial reform.
However, Taiwan’s Cabinet system is more complex than the Japanese system. An agency in charge of judicial reform that coordinates across different ministries and departments -- or even one across the five branches -- would not only raise concerns of becoming dangerously powerful, it would also be legally impossible.
With no law in place to govern and supervise the implementation of the reforms, the judicial bodies would probably be responsible for reforming themselves. If that were the case, it would be difficult to avoid wanton and arbitrary decisions, and it could easily result in the congress becoming a rubber stamp for their decisions.
Wu Ching-chin is an associate professor in Aletheia University’s law department.
Translated by Tu Yu-an
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