Removal of bad judges crucial for legal reform

By Chang Kuo-tsai 張國財  / 

Wed, Jun 13, 2018 - Page 8

Brock Turner, a talented former Stanford University swimmer, comes from a wealthy white family. He was convicted of three felonies and sent to prison for sexually assaulting a drunk female graduate student on campus in January 2015.

Prosecutors had asked for a six-year sentence, but judge Aaron Persky in California’s Santa Clara County gave him a lenient sentence of six months in March 2016, saying that Turner’s youth, otherwise clean record and his having been intoxicated at that time did not warrant handing down a sentence that might ruin his future.

Turner was released from jail for good behavior after serving only three months.

Persky considerately took the offender’s future into account, while ignoring whether the victim’s future would be haunted by mental and physical trauma as a result of the crime.

Women’s rights organizations in the US condemned the decision, while civil rights groups questioned whether “equality before the law” was trampled by Turner’s privileged background.

Persky’s term was not supposed to end until 2023, but due to the public outcry, he was recalled from office by local voters on Tuesday last week.

Santa Clara County residents should be applauded for removing an outdated “dinosaur judge” from office. If the case had occurred in Taiwan — no matter how furious the public was, or how harsh the media’s criticism — a judge like Persky would come through safe and sound, protected by the Constitution, as Article 81 stipulates that “judges shall hold office for life.”

Such a judge, if deemed to perform well, would likely receive a promotion later in their career.

In comparing Taiwan with the US, the reason Taiwanese distrust of the judiciary is as high as 70 percent to 80 percent is obvious.

The clash between the Californian judge and local voters shows that a court’s credibility is not built on a judge’s high profile — one that allows no challenge — but on rulings that do not depart from common sense, the “principle of proportionality” and the “rule of thumb.” Otherwise, the public might take back the judge’s power to enforce the law.

The saying goes: “Absolute power corrupts absolutely.” This is an iron law of politics. Taiwanese judges, who are shielded by the umbrella of trial independence, often put aside their official duties to exercise a judge’s apparent prerogative to “speak from the heart,” having a substantial influence on a wide range of affairs.

Do Taiwanese judges deserve such absolute power? Is there not a danger that they will become absolutely corrupt, as there is no mechanism to eject them from their lifetime roles?

One judge in Taiwan was unable to discern whether the rape of a three-year-old girl went against her will, while another judge claimed that the rape of a six-year-old girl was not against her will. Such judges have continued in their positions and people have no right to say “no” to them. Is this allowing room for an independent judiciary or an autocratic one?

Judges are human, too: They are not gods. They have all kinds of emotions and desires, and can make mistakes and contravene the law. Having a judiciary in which a judge can take someone to trial, but the people cannot take a judge to trial, clearly goes against the spirit of balance that is emphasized in democratic politics.

To prevent judges and prosecutors from becoming “judicial monsters” — those with absolute power who have become absolutely corrupt — it is time for the government to work harder on judicial reform tasks, such as the elimination of dinosaur judges.

Chang Kuo-tsai is a former deputy secretary-general of the Taiwan Association of University Professors.

Translated by Eddy Chang