The Judges’ Union of Judicial Reform, which has more than 30 members, published an open letter in the Apple Daily on Dec. 26, directing harsh criticism against Control Yuan members Chen Shih-meng (陳師孟) and Kao Yung-cheng (高涌誠) over their plan to question judges who decided in favor of former president Ma Ying-jeou (馬英九) in a lawsuit.
The judges said Chen had the authoritarian mindset of the judiciary of the party-state era and accused him of using the Control Yuan’s powers to achieve his own political goals by interfering with the trial system — how judges investigate and interpret the law in individual cases.
This level of criticism is rare.
The group said that disputes over legal opinion should be resolved by the judiciary itself, a statement probably lifted from Constitutional Interpretation No. 325.
However, why should disputes be solved within the judiciary, without external intervention? The judiciary has enormous power: Not only can it make life-and-death decisions and destroy families, it often also has the power to decide issues of major public interest.
This raises the question of whether the judiciary is capable of self-reform. If it lacks the ability of self-reflection and the will to reform, why not have an external monitoring and counterbalancing force? Is this not the basic ideal of a balance of powers that is central to democracy? Why can this ideal not be applied to the judiciary?
Although Constitutional Interpretation No. 35 restricts the Control Yuan’s right of investigation, the question of whether the judiciary is capable of self-reflection and self-reform is surely of equal importance.
If legal problems and reform were to be left untouched until resolved within the judiciary, why did the Presidential Office hold the high-profile National Conference on Judicial Reform in 2017? If the judiciary is the only authority that can solve its own problems as per the group’s open letter, was the Presidential Office breaching judicial independence by holding the conference?
Would the judiciary be able to build the proposed system for lay participation in trials if it is to handle that reform all by itself?
Surely lay participation in trials is itself evidence of public distrust in the judiciary’s ability to solve its problems by itself.
More than 30 years have passed since martial law was lifted, but have the abuses of the past authoritarian system fundamentally changed? Not necessarily.
Judges handle trials in accordance with the law, so if the law remained fundamentally unchanged after martial law ended, are fair trials still unavailable to the public? This seems to be a flaw that has nothing to do with the issue raised in the open letter of how old judges are.
Has the Judges’ Union of Judicial Reform heard of path dependence from systems theory? According to this, dependence on past systems does not change easily. Would the group’s members believe it if they were told that urban planning and land expropriation regulations are fundamentally unchanged from the Martial Law era?
Taiwan has incorporated the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights into its corpus of laws, and undergone two rounds of international review of their implementation, while the Ministry of Justice has launched a Web site promoting human rights. The judges should check the results of the reviews on the site to better understand that even with martial law ended, many of its authoritarian systems remain in place.
From a constitutional perspective, there might be room to discuss Chen’s attempt to question judges, but the judges should not assert that he is trying to achieve his own political goals. However, considering the severe criticism of Chen, how will the judiciary display its will to self-reform and how will it achieve it?
Would it build a fair and independent system?
Hsu Shih-jung is the director of National Chengchi University’s Center for the Third Sector.
Translated by Eddy Chang
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