In the two years he has been in office, President Ma Ying-jeou (馬英九) has not really been associated personally with many policies. The two exceptions have been his support for the Economic Cooperation Framework Agreement (ECFA) with China and the establishment of an anti-corruption commission. This puts Ma in something of a contradictory position because the Chinese Nationalist Party (KMT) opposed a draft organic statute for an anti-corruption commission proposed by the Ministry of Justice under the previous Democratic Progressive Party government.
Now that Ma is party chairman, he has co-opted this idea while claiming to want to “create” an anti-corruption commission. Both the laziness of ministry officials and Ma’s changeable moral compass are disappointing in the extreme.
If the government wants to establish an anti-corruption commission, it should do so according to the 10-year-old ministry memorandum.
Despite the high level of consensus that such a commission should be just the first step in the process of judicial reform, Ma has made no indication that he supports this process. Although countless academics, lawyers, judges from courts of first instance and newspaper editorials have all recently urged Ma to take action on judicial reform, these requests seem to have fallen on deaf ears.
Ma cares very much about not contradicting himself, so to understand his reticence we need to look at the policy white paper released during his presidential campaign. Its main point in this respect was a desire to make judicial independence a reality.
In the paper, Ma observed that despite several years of judicial reform and the elimination of various irregularities, the fact that the president nominates candidates to the Council of Grand Justices and government agencies continue to influence prosecutors, creates the impression that the judicial system is subject to political pressure and manipulation at all levels.
Ma said that if elected he would review the nomination system for these supposedly independent institutions, to ensure nominees would be chosen based on expertise, integrity and responsibility. He also said political interference should be eliminated from all staff appointments, investigations and sentencing and promised to actively push for judicial reform. These suggestions were all to be part of a concerted campaign to enhance the impartial image of the judiciary in its role as the last line of defense for human rights.
In other words, Ma clearly believes that the judicial duty of the president should be limited to nominating a prosecutor general, a justice minister and a Judicial Yuan president with expertise, integrity and a sense of responsibility and then allowing them to get on with judicial reform.
Given this situation, it seems reasonable to conclude that Ma will not seek to promote judicial reform of his own accord, lest the judiciary is “forever unable to free itself from the control and influence of political forces.”
If this is really what Ma is thinking, then he needs to be reminded that getting the heads of the five branches of government together to promote judicial reform will in no way undermine the independence of the judiciary, because such reforms need the cooperation of all branches of government to succeed. The judiciary should be independent, but not isolated.
At the moment, the judicial system is incapable of resolving its own problems. If the president will not take action to rectify this situation then who can?
Furthermore, judicial reform is the first big step toward democratic legitimacy. Every few years people vote in an election or, once in a blue moon, in a referendum. While these actions are extremely important, they are also just the initial stages of democracy, not ends in themselves.
A mature democracy seeks to ensure its citizen’s civil and public rights are protected not just for the duration of an election campaign, but when it is over. In other words, a democracy must guarantee such rights are not encroached on by any person, administrative or judicial institution.
This also means that corrupt politicians who seek to circumvent the law must be brought to justice and that malicious lies be revealed to be just that. Those who have been treated unjustly must be exonerated and collective wounds need to be healed.
To do all this, the courts need to be based on a set of values that all citizens can trust. Only then will they believe that justice is truly blind.
For Ma, who has often declared his interest in democratic reform and put forward ideas as to how reforms might progress, distancing himself from judicial reform is tantamount to giving up on the process.
It has been some time since Lai In-jaw (賴英照) stood down as president of the Judicial Yuan and since then acting president Hsieh Tsai-chuan (謝在全) has made it clear that his provisional status made it impossible for him to promote any major policy changes. In effect this means that the Judicial Yuan is currently unable to make any decisions.
No one knows what mechanism Ma will use to nominate the next Judicial Yuan president and that is a wholly unacceptable situation for any country to find itself in. All we can do is engage in some quid pro quo haggling, informing Ma that if we allow him to establish an anti-corruption commission, then we expect judicial reform in return.
Liu Kung-chung is a research fellow at the Institutum Iurisprudentiae of Academia Sinica, a professor in the Institute of Law for Science and Technology at National Tsing Hua University and a professor in the Graduate Institute of Intellectual Property at National Chengchi University.
TRANSLATED BY DREW CAMERON
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