Thu, Dec 30, 1999 page8

• Why judicial evaluations are needed

  • Brian Kennedy
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  Every year, the Taipei Bar Association and the Judicial Reform Foundation (JFR) release a set of judicial evaluations. Many members of the bench are not overly pleased with either the results or the methodology of the evaluations. Some were so displeased that they filed libel suits against the sponsors of the project.

  However, such judicial evaluations are an important part of a modern legal system; it is only the appropriateness and accuracy of particular methodologies that is to be debated. The Taipei Bar Association and the Judicial Reform Foundation are to be congratulated on having the wisdom and will to undertake this very vital role.

  In essence, judicial evaluations are "report cards" for judges, which are carried out by local bar associations who contact attorneys who have practiced in front of the judges whom they are "rating."

  The US has had such evaluations for years, for reasons that are perhaps much the same as in Taiwan. Attorney Alexander Polikoff, who helped found the Chicago Council of Lawyers, which is a group dedicated to monitoring and improving the Illinois State courts, said in 1969: "The Judiciary and the court system, including the selection of judges, is shot through with politics, and the quality of justice suffers grievously as a result .... Judicial procedure in the lower state courts within our city is a mockery. How is it that lawyers have not long since put the operation of the judicial system on a sensible basis?"

  Attorney Polikoff was referring to Chicago, but many Taiwanese attorneys would echo his comments.

  The reasons why judicial evaluations are important fall into roughly three major categories: accountability, transparency and criteria for improvement. All three areas are of particular relevance here in Taiwan.

  Accountability refers to the concept that judges, as professionals, must accept responsibility for the quality of their professional "services." They must perform their duties in a qualified professional manner and meet professional standards in knowledge and application of the law. Judicial evaluations are one way that judges can be "measured" for their accountability. Attorneys are in an excellent position to evaluate how well a judge is performing his or her duties. The bench, in any country, often feels or asserts that they are "above" or "beyond" accountability: "I am the judge. I am the law. I don't answer to anyone."

  I saw that attitude myself in California. But it is an incorrect attitude that causes great damage to a legal system. Along with judges' great power comes respon-sibility and along with that respon-sibility comes accountability. Judicial evaluations help to correct this misguided thinking.

  Transparency is related to accountability. It refers to the idea that a judge's action must be open to public scrutiny. The reality is, the public pays judges their salaries and the public has a right to a clear and complete picture of their performance. Judicial evaluations place the judges' performance in public view and allow the public to see how their "employees" are doing.

  All human institutions, including the bench, have areas that could be improved. The necessity or desirability for improvement can be system-wide or focused on one individual. For a court system to maintain its effectiveness, vigor and quality, constant improvements must be made. As society changes, the challenges facing the bench change and it must evolve new ways to meet them. What is true for the court system as a whole is also true for individual judges. Judicial evaluations provide an important source of information regarding areas that need improvement or change.

  I understand that there have been a number of criticisms leveled at these public judicial evaluations. The most fundamental criticism is that these judicial evaluations are, in essence, useless, because the only method of removing a judge is by impeach-ment and that rarely happens. Be this as it may, judicial evaluations are still of great value, because they reveal the actual quality of the Taiwanese bench. Until we know the reality of the situation, we can not make intelligent choices about what should be changed.

  If one suspects that the quality of the bench is not uniformly good and that fundamental changes in the selection and retention process need to be made, then one needs proof of that fact. Judicial evaluations can provide such proof. They can also provide evidence of what the problems are and what the solutions might be.

  Other criticisms include such things as:

  -- The criteria are unknown and as such the judges cannot intelligently respond to the critiques.

  -- Some judges comment that "since I rule against one attorney in any given case then that attorney is going to give me a negative evaluation."

  -- The number of respondents was low.

  -- Making the results public causes a loss of public respect for the bench and trivializes and politicizes the situation.

  I will respond to these in turn.

  First, the evaluation criteria employed in Taiwan seem straight-forward and reasonable. However, I do agree with the bench that a single "number score" is meaningless at best, giving no useful information about what a judge does well, what they do poorly and what changes should be made.

  As to the idea that "I am a judge, I make rulings that automatically displease half the attorneys who appear before me," I have a one word answer ... professionalism. I would hope and assume that the members of the Taiwanese bar are professional enough to separate the two issues of "did the judge's ruling go my way" from the issue of "is this person a good judge." I have had the pleasure of meeting a number of Taiwanese attorneys, both prosecutors and from the defense bar, and I am quite impressed with their professionalism.

  The number of responses to judicial evaluations is unfortunately always low everywhere. Practicing attorneys are often too busy to fill out the forms. I know because I used to either throw the forms away or let them set on my desk until after the deadline. My second comment on that is that in some ways the quality of the responses is far more important than their quantity. One response, thoughtfully and thoroughly done, may have much greater value than 10 responses where the attorney just marks 70 percent for each judge in each category.

  One recommendation I would have in this regard for next year, is for the sponsors of the evaluations to follow the Chicago Council of Lawyers approach and have investigators conduct personal interviews with attorneys regarding judges whom the attorneys have appeared before. I realize that this is a costly and time-consuming procedure but it does enhance the quality of the evaluations.

  Lastly, to respond to the criticism that making the results public causes a loss of public respect for the bench; trivializes and politicizes the situation, I have a couple of comments.

  First, public respect for the bench is important in any legal system. However, in my analysis, the public cannot and will not have respect for a judiciary that appears to be unaccountable, opaque in its proceedings and beyond public censure. I understand that at present the Tai-wanese public has, shall I say, "mixed" feelings about the bench. In this circumstance, public accountability, such as these judicial evaluations, enhances public respect, it does not diminish it.

  The local bench would do well to remember the Star Chamber Court. Because of its secrecy and unaccountability the public feared the Star Chamber, but they did not respect it. Eventually the public got fed up with the Star Chamber and it was completely dissolved.

  History is full of lessons worth remembering.

  Brian Kennedy is a member of the boards of Amnesty International Taiwan and the Taiwan Association for Human Rights.
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