Hsu Shih-jung (徐世榮), director of National Chengchi University’s Center for the Third Sector, on Sunday last week wrote an opinion piece in the Taipei Times on Control Yuan member Chen Shih-meng’s (陳師孟) plan to question Taipei District Court Judge Tang Yue (唐玥) for ruling former president Ma Ying-jeou (馬英九) “not guilty” in a 2017 lawsuit (“Judiciary needs help for reforms,” page 6).
This controversial issue is not suited to a discussion on the rule of law, as Chen is known for his hostility toward the pan-blue camp, going against Article 2 of the regulations governing Control Yuan members, which demands self-regulation of members and insists that they transcend political partisanship, remaining neutral in the performance of their duties.
This means that either going on the attack or taking a defensive posture causes the discussion to shift out of focus.
However, Hsu seems to have misunderstood this separation of powers and his view could therefore be misleading.
Hsu was correct to say that the judiciary should be subjected to “an external monitoring and counterbalancing force,” which is the fundamental ideal of a balance of powers — this is the current situation.
With the government’s power divided among three branches, the judicial branch is the most vulnerable and restricted of the three. Compared with the legislative branch, which initiates laws, or the administrative branch, which enjoys vast resources, the judicial branch only passively interprets the law, ensures that laws are adequately implemented and resolves disputes.
Still, there is the risk that the other two branches might wait for an opportunity to settle accounts with the judiciary — for example, by a hiring freeze or budget cuts.
For this reason, “trial independence” and “judge autonomy” have been designed to protect the effective implementation of judicial powers, which can be easily monitored compared with the legislative and administrative powers.
This is why it was fine for President Tsai Ing-wen (蔡英文) to hold the National Conference on Judicial Reform in 2017, just as Hsu said. It was also fine for the legislative and administrative branches to decide the judiciary’s organization and personnel.
The Examination Yuan is responsible for judge exams, the Ministry of Justice for training judges, while the public can request a review of judges. These designs show that “an external monitoring and counterbalancing force” for the judiciary has always existed.
The public is concerned because a number of judicial problems remain unresolved, but such problems are highly complex, possibly originating from the nation’s laws and regulations themselves, such as those dating back to the authoritarian era, which Hsu cited, while others stem from false accusations, performance assessments and inefficient investigations.
Looking for a scapegoat at the final trial runs the risk of oversimplifying matters. That is why the president held the judicial reform conference, followed by the Legislative Yuan’s passage of 51 laws and the Judicial Yuan’s push for lay participation in trials — all in the hope of reforming the judiciary by perfecting the legal system.
Hsu wrote that “lay participation in trials is itself evidence of public distrust in the judiciary’s ability to solve its problems by itself,” but, if his logic stands, that would mean that lay participation reflects the inability of judiciaries in the US, Japan and some European countries — which have long adopted lay participation in trials — to solve their problems by themselves.
Lay participation highlights that citizens are the master of a nation and that national powers stem from them. Judicial rights are no exception, and the issue is irrelevant as to whether the judiciary has the ability to resolve its problems.
Finally, Hsu criticized the Judges’ Union of Judicial Reform for stating in an open letter that “disputes over legal opinion should be resolved by the judiciary itself,” but this was based on a misunderstanding.
The external monitoring and counterbalancing force advocated by Hsu and the handling of disputes over legal opinions are issues on different levels. Thus, the judiciary is responsible for interpreting the law based on the separation of powers, while the expression of legal opinions is at the core of judicial power and does not tolerate interference from the two other branches.
This is why the judiciary has the final say on the interpretation of constitutional law.
Whether a ruling on an influence-peddling case should be based on the defendant’s “substantive influence” or “statutory duties” is up to the Supreme Court. If the court’s opinion is not satisfactory, the only solution is to amend the law so that there is less room for interpretation, but the Supreme Court cannot be forced to change its opinion by impeaching a judge. This is what the separation of powers is about.
There is no quick fix for a long-standing problem and there is no panacea for bringing about democracy and the rule of law. It takes time and public determination to protect the rule of law. It will not be achieved by the Control Yuan waving its sword and threatening to cut things off at the root.
Evan Chou is a Chiayi District Court judge.
Translated by Eddy Chang
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