Reform of the judiciary is needed

By Lin Feng-jeng 林峰正  / 

Tue, Jun 28, 2011 - Page 8

After 20 years stalled in the legislature, the much-anticipated Judges’ Act (法官法) has finally been passed. President Ma Ying-jeou (馬英九) said that the law was a milestone in the history of judicial reform and a further step in the right direction, from which there would be no turning back. Judicial Yuan President Rai Hau-min (賴浩敏) said the foundations for judicial reform were now in place, adding that it was an historic milestone and a great reassurance.

However, from where the public stands, things look a little different. Yes, it is true that the enactment of the Judges’ Act is a judicial milestone and reform is indeed moving along a trajectory that should not be deviated from. However, what we want to know is whether this piece of legislation will actually be able to improve the quality of our judges once it is implemented. Will it really increase the public’s trust in the judiciary?

I have been pushing for this law for a long time now and I have to say, in all sincerity, that I am not convinced it will.

Independence and objectivity have always been considered to be at the heart of the judiciary, which is why the Constitution stipulates that judges “shall try cases independently, in accordance with the law” and that “judges shall hold office for life.” These clearly demonstrate the importance the Constitution places on judicial independence. Unfortunately, the seeds of the problem we are now faced with lie within this very guarantee, for as a consequence of the way things have transpired, the means have become an end in and unto themselves.

In real life cases, when judicial officials respond to public criticism about such and such a ruling, they quote verbatim the tried-and-tested platitude that the judges’ actions were a necessary result of the constitutionally required judicial independence. They seem to have forgotten that the responsibility of the judiciary is to give the public the fairness and justice it deserves. Should fairness and justice fail to materialize, or be delayed, the question of whether or not there is judicial independence quickly becomes a side issue.

However, the public is also concerned about a second point. Following the introduction of democracy in this country, the judiciary has gradually managed to divest itself of the autocratic control of the government and developed room for its own judicial independence to grow. This is certainly very commendable, but over time, unbeknownst to us, this independence has turned into dominance and from there into a virtual dictatorship.

What concerns us is that the self-regulation of judges, once in the past by the public because of the guarantees against corruption that were had promised, has changed over time into an excuse for closed ranks, closed minds and a closed attitude to progress on the part of the judges. Twenty years ago, when the Judges’ Act was first looked at, the legislative intent was on guaranteeing judicial independence and self-regulation. Today, the pendulum has swung the other way, favoring transparency and external regulation.

The Judges’ Act, as the name suggests, concerns itself mainly with judges, including the Judicial Personnel Review Committee responsible for allocation and relocation as well as decisions on rewards and sanctions, the Evaluation Commission and the disciplinary court, charged with deciding the consequences of judges’ misconduct. This entire process is seated in and carried out within the Judicial Yuan, a fact in compliance with the requirements of self-regulation for judges, albeit with external representatives sitting on the committee and the commission to curb the excesses of judges closing ranks and protecting each other.

However, a full half of the number of external members in the two aforementioned bodies are to be nominated by the Judicial Yuan, with the final say being handed to the Judicial Yuan president. This confounds the point of having external, unaffiliated members present. What started out as a sound principle has been thrown off course and it is once again business as usual. What I find really unacceptable is that during the negotiations for this law, the Judicial Yuan was unwilling to budge on the issue of the establishment of an external disciplinary mechanism, absolutely insistent that the final decision on the discipline of judges remain in the hands of judges. It was unwilling to give even an inch.

During the recent passage of the third reading of the Judges’ Act, it refused to end the practice of selecting judges through examinations or to differentiate between judges and public prosecutors, such that the act also applies to the latter. These pressing issues, central to the much-needed judicial reform, have once again been shoved onto the back burner. An opportunity has been missed. The public should be aware of the fact that these issues are ticking time bombs, not unlike the plasticizer scare, that are very likely to blow up in our faces some time in the future.

All in all, the final version of the Judges’ Act does little more than peek out of the halfway house it has been holed up in for some time, a half-baked piece of legislation precariously tottering on the starting line of reform. There is still so much to do.

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