Wed, Oct 10, 2007 page8

• Reforms should prioritize people

  • By Lin Feng-cheng 林峰正
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  Weng Yueh-sheng (翁岳生) retired as president of the Judicial Yuan on Sept. 30 on completion of his full term. In the preface to his book Eight Years of Judicial Reform, Weng wrote: "Judicial reform was instigated on behalf of the people. It is only with the support of the people that reforms will have momentum, and only with the trust of the people that they can be kept alive."

  The idea that, in a democratized nation like Taiwan, the judiciary exists for the people paints a good picture of the fundamental values that underlie the judicial system. However, such noble words refer only to the ideal itself and do not adequately represent the reality.

  Under Weng's tenure, many dissenting voices across the social spectrum were heard over political and judicial issues that he failed to address promptly. Indeed, it wouldn't be an exaggeration to say that the wave of criticism was overwhelming.

  However, if Weng's achievements during his tenure as judicial president were to be appraised on this alone, I'm afraid we would be ignoring the wider story. The above views are taken from the perspective of authority, but in this article I will try to look at things from the perspective of public interest.

  A major amendment was made to Taiwan's Criminal Procedure Law (刑事訴訟法) in February 2003, in which the refined adversary system was adopted in line with the conclusions of the 1999 National Conference on Judicial Reform. In the past, on the recommendation of the public prosecution, the proceedings would be handed over to the judge, who had the sole authority to review and pass judgment.

  But since the amendment, the prosecution is required to be present in court to present evidence and, together with defense lawyers, cross examine the witnesses to verify the reliability of their testimony. This enables the judge to hear the case more objectively as a third party to the proceedings to ensure an impartial verdict. Changes of this kind made court proceedings more transparent and helped improve public perception of the judicial system.

  In April last year, the Judicial Yuan made a further amendment to the Criminal Procedure Law, placing restrictions on the ability of the public to bring litigation in an effort to lighten the workload of judges in courts of second instance. However, this met a huge public backlash as the integrity of decisions delivered in the courts of first instance had yet to come up to the level required to earn the public's trust.

  This somewhat rash amendment had taken only the judges' case burden into consideration, raising the threshold of what could be taken to court and restricting the public's right to litigate, therefore making it difficult for the people to see flawed rulings put right. What had happened to the public's constitutionally guaranteed right to litigation?

  The amendment finally foundered because of public obstruction. It did, however, succeed in bringing to light serious issues related to the question of whether judicial reform was actually being conducted with the public interest in mind. Put another way, if the starting point for judicial reform was simply to lighten the case burden for judges, it could only become increasingly divorced from the people.

  Another case in point is the ongoing legislation of the Judges' Act (法官法).

  Article 81 of the Constitution states that judges enjoy life-long tenure. It is therefore almost impossible to get rid of judges, including bad ones. A quick look at the disciplinary actions meted out by the Judicial Yuan's Committee on Disciplinary Sanctions of Functionaries over the past decade shows that fewer than 40 judges and prosecutors were removed from their positions as punishment.

  Moreover, a majority of those punishments were related to issues of personal conduct. The number of cases resulting from flawed rulings was negligible, with the few instances cited arising from clear cut cases of unconstitutional custodial sentences. If we were to take away the number of prosecutors involved, the total would be even lower at less than 30 judges disciplined over the course of a decade, that is, less than three judges a year.

  In order to remove judges who are not up to standards, a supervisory mechanism was set up and the Judicial Yuan started drawing up a Judges' Act a decade ago. This draft legislation only entered the review stage in the Legislative Yuan at the beginning of April this year.

  A major piece of fundamental judicial legislation, the Judges' Act necessitates supervision by the Cabinet, the Examination Yuan and the Control Yuan and involves all kinds of peripheral considerations. Nevertheless, considering that the act has already been more than a decade in the making, what does that say about the efficiency of the judicial system in this country?

  Skeptics have said that given the legislation's objective of removing bad judges, there is little chance that the act would pass because of self-interest and pressure from colleagues. While there is little evidence to back this assertion, it cannot be entirely ruled out.

  Matters of justice and the judiciary are inherently complex and tweaking one aspect will invariably have repercussions throughout the system. If it is possible to conduct a thorough reform that places the interest of the people as its core driving principle, I believe the public will give such a project its whole-hearted support and will not shy away from showing due recognition.

  Now that the presidency of the Judicial Yuan is changing hands, we have the perfect opportunity to take stock of the reforms so far, get a clear understanding of their goals and start anew. There is surely still much room to maneuver, and we can continue working toward the ideal of a judiciary for the people.

  Lin Feng-cheng is president of the Judicial Reform Foundation and a lawyer.

  Translated by Paul Cooper
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