Sat, Nov 25, 2000 page8

• Judging the judges is a vital step

  • By Brian Kennedy 甘迺迪
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  "What faces were around him! Their little black eyes darted furtively from side to side, their beards were stiff and brittle and to take hold of them would be like clutching bunches of claws rather than beards." That description of judges from Kafka's famous book The Trial comes to mind when considering the newest set of judicial evaluations ("High court judges score low in poll," Nov. 23, page 2) that were just released by the Taipei Bar Association (台北律師公會) and the Judicial Reform Foundation (民間司法改革委員會).

  This is the fourth year such evaluations have been conducted. This year's results reveal an odd situation. Taiwan's judiciary is divided into three levels, with district courts the lowest level. Above the district courts are the high courts. These are a strange hybrid that is half trial court and half appellate court. Above the high courts is the Supreme Court.

  As you would expect, high court judges have more experience, more seniority, oftentimes more formal education and tend to be older. The district courts, again as you would expect, are where the less experienced, junior judges sit.

  What is odd, however, is that the results of the evaluations shows that attorneys who practice in front of both district court and high court judges find the lower court (district level) judges to have better judicial temperament, are more trustworthy and render a better quality of verdict than their high court counterparts.

  These results are the reverse of what they ought to be. The high courts should be the more honest, the more even tempered and should be rendering the more well-reasoned verdicts. But that is not the case.

  I should mention at this point that the bar association and the foundation are to be highly commended for their moral courage and dedication to professionalism in conducting these studies. In a clear attempt to stop these evaluations a number of judges filed a criminal libel suit last year against the sponsors of the study. The filing of a private criminal lawsuit by judges who were not pleased by the results of earlier surveys reflects very poorly on the judiciary's commitment to improvement. By contrast the sponsor's willingness to continue these annual evaluations while "under the gun" of a pending criminal suit reflects very well on their commitment to judicial improvement.

  Judicial evaluations are a very important part of improving and modernizing our criminal justice system. Given the type of legal system Taiwan has, the quality of the bench is critical. In an inquisitorial system, like Taiwan uses, the judges play a much more central, much more active role than in the Anglo-American adversarial system. In Taiwan's inquisitorial system there are few safeguards against judges that are either outright corrupt, or incompetent or both. Adversarial systems provide far better protection against poor or corrupt judging.

  Thus the monitoring and evaluation of judges by independent groups such as the bar association and the foundation are very important. The public, the Judicial Yuan and the legal community should welcome and support such evaluations.

  Two conclusions can be drawn from the face of this year's evaluations; some good news and some bad news. The good news is that there may be a crop of new judges coming up through the ranks that will be less prone to corruption, more dedicated to judicial professionalism, and more rational and careful in their rulings.

  The bad news is that for the present, Taiwan's judiciary is "bottlenecked" by high court judges who are not trusted by the attorneys who practice before them, who often lose control of their emotions and who render verdicts that make little, if any, sense.

  Given the fact that judges have lifetime appointments and are basically impossible to remove from the bench for any reason, Taiwan's criminal justice system faces the unpleasant specter of simply having to wait until bad high court judges either die or retire before the quality of the High Court bench can be expected to improve.

  Brian Kennedy is an attorney who writes and teaches on criminal justice and human rights issues.
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