Sat, May 21, 2011 page8

• Special justice for errant judges

  • By Lin Feng-jeng 林峰正
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  Readers might recall the case of the Supreme Court judge who lobbied a colleague to return a “not guilty” verdict for his son. The case, which erupted in mid-August last year, resulted in the Control Yuan impeaching the two judges involved, the one doing the lobbying and the one lobbied.

  The Judicial Yuan’s Commission on the Disciplinary Sanctions of Functionaries, which has the power to discipline such misconduct, published the following notice of disciplinary action on Jan. 28:

  “The accused, Supreme Court Judge Hsiao Yang-kuei (蕭仰歸) and High Court Presiding Judge Kao Ming-che (高明哲), have failed to conduct themselves in accordance with the demands of their position, comply with the judges’ code, maintain high standards, or to exercise discretion in either refraining from engaging in, or resisting, illegal lobbying or intervention. The evidence against the accused Hsiao and Kao is clear and incontrovertible ... [Their] conduct violates Article 5 of the Civil Servants Work Act (公務員服務法), which states that public servants failing to exercise discretion, or those engaging in any behavior that could be injurious to their name, shall be disciplined according to the law. The individuals involved in the case are senior judges. The accused Hsiao Yang-kuei, due to his son’s involvement in a separate case and out of concern for the welfare of his child, approached a fellow judge, on several occasions, with the intent of lobbying [for a favorable verdict]. The accused Kao Ming-che acceded to his friend’s request and prevailed upon the presiding judge to act in accordance with it, in so doing causing serious harm to both the image of the judiciary and the public’s confidence in it. In view of the results of an investigation by prosecutors, it has been found that the decision by the Taiwan High Court does not deliberately pervert the law and that they shall be disciplined as indicated in the verdict [of this resolution].”

  This text is taken from Resolution 11895 published by the commission. The verdict, included in this resolution, was that “Hsiao Yang-kuei is to be suspended for a period of six months” and that “Kao Ming-che is to be downgraded to second rank.”

  The conclusion of all this is that the two judges, both the one who broke the law by lobbying for a desirable verdict and the one who succumbed to the lobbying, remain in their positions as judges. They will, then, once again put on their robes and sit in judgement on members of the public, potentially making life-or-death decisions. They are both senior judges who sit on high level cases. Hsiao, in particular, is on the court of last instance, responsible for making final judgements on behalf of the nation.

  This resolution represents the final judgement of the commission, and whether we find it acceptable or not, both judges will return to the courtrooms.

  There are so many questions hanging over this. Why is it that our society cannot reject judges who break the law? And how grievous does their misconduct have to be before they are replaced? The point is that the commission itself is composed entirely of senior judges. This is what happens when matters are dealt with internally, when one judge judges another. There is no need to look any further for an explanation. This is what was found when the Judicial Yuan was finally forced to investigate the matter.

  The problem is, this type of professional protectionism does not show any sign of going away. The draft judges’ law is still floating around the legislature as lawmakers deliberate details such as the mechanism for replacing judges. The Judicial Yuan is advocating that, after judges under investigation are impeached by the Control Yuan, they should be referred to an internal tribunal at the Judicial Yuan, composed entirely of senior judges who will have the final say on any disciplinary action to be meted out.

  Other people suggest that, in the interests of impartiality, there ought to be at the very least a number of unaffiliated experts or respected members of society on the bench, but the Judicial Yuan is not willing to give an inch on this. Consequently, senior judges will pass judgement on senior judges in an institution different from the commission in name only. Even before the judges’ law is enacted we know from previous experience that retiring judges will be given a way out and that the mechanism will be fairly toothless.

  This is but the most glaring problem in the official draft of the judges’ law. Other issues include the fact that members of the public cannot directly report judges to the authorities and must wait until the final verdict on the case in question has been handed down before they can do so. This totally fails to take into account the fact that many cases are drawn out over many years precisely because of inadequate rulings. Until somebody cleans up after the mess they have created, the judge cannot be reported.

  Other problems are that regular judges’ reviews are conducted behind closed doors within the Judicial Yuan, the results kept confidential and the refusal to end examinations for qualification as a judge means that we will continue to be plagued with inexperienced judges. These are a few of the problems, but there are many more.

  That having been said, the legislature is due to go into recess later this month and, barring any unforeseen developments, the judges’ law will be pushed through by politicians with an eye on their popularity ratings. There is, after all, a presidential election on the horizon. Who cares what the public wants? And who cares whether the judges’ law, in its final shape, is nothing but a law for dinosaur judges?

  Lin Feng-jeng is a lawyer and executive director of the Judicial Reform Foundation.

  TRANSLATED BY PAUL COOPER
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