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Judicial reforms need a rethink
By Chen Chi-ming 陳鋕銘
Friday, Aug 06, 2010, Page 8
The Special Investigation Panel’s probe into the alleged
collective corruption of High Court judges is a wake-up call to all those in the
judicial system who habitually cover up for others.
However welcome such an investigation, the incorruptibility of the judicial
system is dependent not on ad hoc investigations, but rather long-term work.
With that in mind, we need to review the mechanisms currently in place for
investigating corruption cases involving judges.
When prosecutors investigate other prosecutors, they are obviously subject to
peer pressure, which in many cases can sway decisions. Only a handful of just
and upright individuals unmoved by personal appeals or favors are suitable for
such investigations.
Fortunately, the need for judicial reform has strengthened prosecutorial
independence and made it clearer that the core values of judges should be
fairness, justice and impartiality. This has made the prosecutorial system more
independent and pluralistic.
Over the last few years, prosecutors have, on several occasions, taken the
initiative in investigating corruption cases involving other prosecutors, but we
still need more focused and self-disciplined individuals to deal with their
collectivist mindset once and for all.
It is well known that this “unity” often means that individual prosecutors
encounter inappropriate obstructions, which can impact their conduct in
corruption cases involving the judiciary. It is therefore important that the
allocation of duties is just and fair and that it is made institutionally more
difficult for prosecutors to cover for each other.
Unfortunately, the Cabinet has removed clauses that long limited prosecutorial
“unity” from the current version of the judges act, while once again making
prosecutors’ meetings a formal part of the administrative process, which means
they will have to abide by the decisions of their superiors.
These are two big steps backward that will harm prosecutorial independence and
need to be corrected by legislators during the legislative review process.
If a certain prosecutors’ office is plagued by hypocrisy or weak investigative
abilities, prosecutors with questionable integrity in that jurisdiction have
little to worry about. The solution to this problem lies in the senior
prosecutors’ office establishing an investigative organization to make up for
the loopholes that exist in that particular jurisdiction.
In the past, the Black Gold Investigation Center under the Taiwan High Court
Prosecutors’ Office and its various special investigative teams served this
function and was involved in many corruption cases involving prosecutors and
judges.
The Special Investigative Panel under the Supreme Prosecutors’ Office
established after the Organic Act of Court Organization (法院組織法) was passed, was
headed by the prosecutor-general, who gained democratic legitimacy from being
nominated by the president and appointed by the legislature. The question is:
How should we respond to corruption within the special investigation panel? That
requires strong and independent prosecutors at the first trial, which would
allow the establishment of a comprehensive monitoring mechanism.
The Control Yuan recently questioned the appointment of the prosecutor-general
by the legislature and the constitutionality of the special investigation panel
and expressed a wish to dismantle the entire framework. That must not be
allowed.
Many people have discovered that after reviews of wiretapping requests were
transferred to the courts, certain judges became cockier than usual and
go-betweens in the bribing of prosecutors and judges became more brazen.
Prosecutors, however, were frustrated because their ability to carry out
effective investigations was diminished.
Although judges are vested with the responsibility to make independent and just
decisions, it is perhaps inevitable that there will be times when they waver in
their certitude as a result of emotional connections to their peers and a
collective sense of self-preservation.
Prosecutors who in normal circumstances are expected to obtain court approval
for investigation-related requests find themselves in an awkward position when
they investigate judges.
A cursory review of media reports over the years indicates that many corruption
cases involving judges have remained unresolved for over a decade. This can be
taken as a clear indication that a collective sense of self-preservation exists
among judges.
Prosecutors investigating judges and middlemen offering bribes often encounter
unreasonable obstacles put in their way by judges.
Prosecutors daring to wiretap or file law-suits against judges have to deal with
the emotional reactions of the judge in question, and sometimes such cases are
manipulated to turn the two sides against each other so that a generally
antagonistic relationship can prevail between courts and prosecutors. As a
result, the prosecutorial office in question might encounter problems for years
thereafter when applying for warrants or permission to wiretap.
Strengthening judicial independence is of course indispensable when it comes to
guaranteeing independent and unbiased judgments. However, this becomes much more
of a problem when it comes to corruption cases involving individual judges when
the collective self-preservation mechanism can be a serious obstacle to justice.
The question is how to overcome it in cases involving individual judges?
The search and arrest warrants for the supreme court judges allegedly involved
in the recent corruption case were approved by district court judges. The fact
that the judges belong to a different court jurisdiction will hopefully lead to
a weakening of the peer pressure felt by judges and perhaps establish a template
for the development of a system that supervises the work of judges.
The question now is whether prosecutors should be allowed to demand mandatory
punishment in corruption cases involving judges by turning to judges in other
jurisdictions or should all such cases be handed over to a single dedicated
court of law, an investigative judge, the court president or the presiding
judge?
This is something that requires further study to ensure that a solution is
devised that preserves the integrity of the legal system.
This case shows that prosecutors and judges are equally important when it comes
to upholding judicial independence and honesty. We do not need a judges’ act,
what we need is a judicial officials act.
It is of the utmost significance that the current investigation of alleged
collective corruption among high court judges by the special investigations
panel occurred at a time of major personnel changes in the judiciary. That
indicates that there is still hope.
Chen Chi-ming is deputy chief prosecutor of Yunlin District
Prosecutors’ Office.
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