District court judges have started a signature drive requesting that the Supreme Court scrap its system of keeping the names of justices assigned to preside over a case confidential. After President Ma Ying-jeou (馬英九) openly supported the request, Judicial Yuan President Rai Hau-min (賴浩敏) immediately started discussing the matter with the Supreme Court. Despite this, there are those who oppose any such changes.
At a handover ceremony on Thursday, retiring Supreme Court chief justice Yang Jen-shou (楊仁壽) Yang openly expressed his opposition to the proposal. He criticized Ma, saying he had been enticed by young judges and that by interfering with the confidential case-assignment system — which is intended to ensure independence — he has also interfered with the court’s jurisdiction. He also admonished Rai, saying that monitoring of judicial administration must not influence the exercise of judicial power.
In addition, Yang told his successor, Yang Ting-chang (楊鼎章), who supports the abolishment of the system, that his name would go down badly in history if he supported these changes just to appear as a good government official.
The Code of Civil Procedure (民事訴訟法) states that Supreme Court rulings must be based on oral arguments. In other words, open proceedings should be the rule and written proceedings may be used only when a court feels that an open trial is not necessary. For civil procedures, regulations state that closed proceedings are the norm and that open proceedings are applicable only in exceptional circumstances.
Irrespective of this, the law tells us that regardless of whether it is a rule or an exception, the Supreme Court, which is the court of third instance, should open its doors and listen to the litigants and the presentations of their lawyers before coming to a decision. This means that we cannot allow judges to hide behind a screen. Everyone should know who is handling a case, and this system of keeping the case-assignment process confidential and not letting the public know the names of the trial judges should be abolished.
If Yang Jen-shou insists that the Supreme Court maintain the system that keeps the case-assignment process confidential, then I would like him to first answer whether or not, when the Supreme Court does not hold open proceedings, this is in conflict with the aforementioned regulations regarding oral argumentation in the Supreme Court stated in the Code of Civil Procedure and the Code of Criminal Procedure (刑事訴訟法).
It is a well-known fact that during the authoritarian era, it was not uncommon for power and money to interfere with the judiciary. To protect the independence of the judiciary and Supreme Court judges, a system that kept the case-assignment process confidential was invented — a system rarely seen in other countries. This system made it impossible for outsiders to find out who was the trial judge on a certain case. It provided protection for the Supreme Court and helped judges block possible threats from power, money and violence.
Although we cannot say that the judiciary is completely free of interference from power and money, there is a social consensus that the judiciary should be independent. It has been a long time since violence was used against judges and tampering with judicial proceedings is no longer socially accepted. In this social atmosphere, there is no reason to perpetuate exceptional methods from a past exceptional period. I am sure this is the main reason why Ma and Rai supported the judges advocating reform.
Infant incubators were invented to help premature and frail newborns maintain an optimal temperature and for use in emergency situations. However, incubators are meant for temporary use, and an infant cannot receive such artificial protection forever; otherwise they will never be able to develop properly.
Taiwan’s judiciary has developed from a totalitarian era through an authoritarian era. Luckily, many outspoken individuals have never backed down from their belief in the independence of the judiciary and demands for efficiency and quality. There are now many judges who have actively made moves to escape the judicial “sauce-vat culture” and demanded that the Supreme Court take a brave first step toward reform by scrapping this outdated system. I believe this would win strong support among a majority of judges and the public. Supreme Court judges are no longer infants and it is high time they say goodbye to their incubator: the system that keeps the case-assignment process confidential.
Lin Feng-jeng is a lawyer and executive director of the Judicial Reform Foundation.
Translated by Drew Cameron
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