A constitutional crisis between the Judicial Yuan and the Control Yuan has sparked controversy.
In July, Control Yuan member Chen Shih-meng (陳師孟) conducted a self-initiated investigation into the judges who found former president Ma Ying-jeou (馬英九) not guilty of leaking classified information obtained by the Special Investigation Division during the 2013 “September strife.”
Chen said that he would investigate and question whether the judges abused “free evaluation of evidence through inner conviction,” adding that Taiwan’s judiciary is not the last line of defense when it comes to upholding justice for the public — it is the preserve of conservative forces, the final stronghold of the one party-state’s political ideology.
On Wednesday last week, the Judges’ Association of the Republic of China launched a petition to “boycott any actions abusing power to interfere in judicial affairs.”
As of this Wednesday, two-thirds of judges nationwide had signed the petition to defend their independent exercise of power.
There are two points to consider. First, Taiwan, as a constitutional democracy, follows the principle of separation of powers. Normally, there are three constitutional institutions: executive, legislative and judicial.
Intriguingly, Taiwan has two other powers: the Examination Yuan and the Control Yuan. The former is in charge of validating civil servants’ qualifications, while the latter is an investigative body that monitors the other branches — similar to the State Comptroller of Israel, whose office can be understood to be a government performance auditor and political ombudsman.
Yet, in practice, most would agree that the Examination Yuan is part of the executive branch, while the Control Yuan is part of the legislative. Basically, everything still operates under the principle of the separation of powers, and the three branches should check and balance each other.
Today, the problem is the expansion of judicial power worldwide after World War II, and Taiwan is no exception.
The system of checks and balances functions in this way: The legislative equals the executive with budget audits, the judicial counterbalances the legislative by judicial review and the executive counterweights the judicial through nominations.
However, after a nomination, judicial power then expands. The reason is simple: Courts have the power to decide whether the other two branches are abusing discretion amounting to a lack or excess of jurisdiction on their part or the instrumentality of the government.
The Control Act (監察法) stipulates that the Control Yuan shall exercise the powers of impeachment, censure and audit, and propose corrective measures against civil servants.
In Taiwan, judges are civil servants regulated by law and, therefore, these measures are applicable. It is clear that the only people who can check and balance a judge are Control Yuan members, so there is no doubt that they can investigate a judge.
Second, and perhaps the biggest problem, is whether a Control Yuan member can question judges to investigate their legal opinion, particularly, in this case, their free evaluation of evidence through inner conviction, which is the core value of judicial independence.
Questioning judges has precedents, but, in terms of questioning or challenging judges’ legal opinions in judgements, it is unprecedented.
In my opinion, it is inappropriate.
A legal opinion written in a judgement should be highly independent and respected, regardless of the case. It is of decisive importance to guarantee that our judges can operate without interference, which is a key part of protecting judicial independence.
In this case, an inquiry by a Control Yuan member without a specific legal mandate could set a bad precedent. What is concerning is that by counterbalancing expanded judicial powers, the power of the Control Yuan could exceed the proportions set by the framework of the Constitution.
I would argue that if you want to control a Trojan horse, it is better to count on its self-restraint than find its Achilles’ heel.
On one hand, most judges in Taiwan are good and obey the rules. How can you expect them to toe the line without keeping their heels? While a few judges are devils, it is unfair to let one rotten apple spoil the barrel.
On the other hand, I would further argue that the number of judges supporting the petition is not all that matters. To some extent, judges are a minority holding power against the majority. The point here is to what extent and what scope of questions would you agree to be questioned by a Control Yuan member?
In conclusion, probably, only ambition can check ambition. We should respect and believe judges operate according to the Constitution and their ethics.
Chen should not stick his nose where it does not belong.
Finally, I would like to remind President Tsai Ing-wen (蔡英文) that in Chinese, we have a saying: “Fear not god-like opponents, but fear pig-type allies” (不怕像神一樣的對手，只怕像豬一樣的隊友).
As the Democratic Progressive Party’s election campaigns get back on track, Tsai should beware of Chen, a self-proclaimed dead pig, who is now “a man out of the blue.”
Tsai should watch her back.
Huang Yu-zhe is an undergraduate student in Soochow University’s Department of Political Science and has been accepted by National Chengchi University’s Graduate Institute of Law and Interdisciplinary Studies.
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