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Judicial reform is a key priority
By Liu Kung-chung 劉孔中
Tuesday, Aug 10, 2010, Page 8
In the two years he has been in office, President Ma Ying-jeou
(馬英九) has not really been associated personally with many policies. The two
exceptions have been his support for the Economic Cooperation Framework
Agreement (ECFA) with China and the establishment of an anti-corruption
commission. This puts Ma in something of a contradictory position because the
Chinese Nationalist Party (KMT) opposed a draft organic statute for an
anti-corruption commission proposed by the Ministry of Justice under the
previous Democratic Progressive Party government.
Now that Ma is party chairman, he has co-opted this idea while claiming to want
to “create” an anti-corruption commission. Both the laziness of ministry
officials and Ma’s changeable moral compass are disappointing in the extreme.
If the government wants to establish an anti-corruption commission, it should do
so according to the 10-year-old ministry memorandum.
Despite the high level of consensus that such a commission should be just the
first step in the process of judicial reform, Ma has made no indication that he
supports this process. Although countless academics, lawyers, judges from courts
of first instance and newspaper editorials have all recently urged Ma to take
action on judicial reform, these requests seem to have fallen on deaf ears.
Ma cares very much about not contradicting himself, so to understand his
reticence we need to look at the policy white paper released during his
presidential campaign. Its main point in this respect was a desire to make
judicial independence a reality.
In the paper, Ma observed that despite several years of judicial reform and the
elimination of various irregularities, the fact that the president nominates
candidates to the Council of Grand Justices and government agencies continue to
influence prosecutors, creates the impression that the judicial system is
subject to political pressure and manipulation at all levels.
Ma said that if elected he would review the nomination system for these
supposedly independent institutions, to ensure nominees would be chosen based on
expertise, integrity and responsibility. He also said political interference
should be eliminated from all staff appointments, investigations and sentencing
and promised to actively push for judicial reform. These suggestions were all to
be part of a concerted campaign to enhance the impartial image of the judiciary
in its role as the last line of defense for human rights.
In other words, Ma clearly believes that the judicial duty of the president
should be limited to nominating a prosecutor general, a justice minister and a
Judicial Yuan president with expertise, integrity and a sense of responsibility
and then allowing them to get on with judicial reform.
Given this situation, it seems reasonable to conclude that Ma will not seek to
promote judicial reform of his own accord, lest the judiciary is “forever unable
to free itself from the control and influence of political forces.”
If this is really what Ma is thinking, then he needs to be reminded that getting
the heads of the five branches of government together to promote judicial reform
will in no way undermine the independence of the judiciary, because such reforms
need the cooperation of all branches of government to succeed. The judiciary
should be independent, but not isolated.
At the moment, the judicial system is incapable of resolving its own problems.
If the president will not take action to rectify this situation then who can?
Furthermore, judicial reform is the first big step toward democratic legitimacy.
Every few years people vote in an election or, once in a blue moon, in a
referendum. While these actions are extremely important, they are also just the
initial stages of democracy, not ends in themselves.
A mature democracy seeks to ensure its citizen’s civil and public rights are
protected not just for the duration of an election campaign, but when it is
over. In other words, a democracy must guarantee such rights are not encroached
on by any person, administrative or judicial institution.
This also means that corrupt politicians who seek to circumvent the law must be
brought to justice and that malicious lies be revealed to be just that. Those
who have been treated unjustly must be exonerated and collective wounds need to
be healed.
To do all this, the courts need to be based on a set of values that all citizens
can trust. Only then will they believe that justice is truly blind.
For Ma, who has often declared his interest in democratic reform and put forward
ideas as to how reforms might progress, distancing himself from judicial reform
is tantamount to giving up on the process.
It has been some time since Lai In-jaw (賴英照) stood down as president of the
Judicial Yuan and since then acting president Hsieh Tsai-chuan (謝在全) has made it
clear that his provisional status made it impossible for him to promote any
major policy changes. In effect this means that the Judicial Yuan is currently
unable to make any decisions.
No one knows what mechanism Ma will use to nominate the next Judicial Yuan
president and that is a wholly unacceptable situation for any country to find
itself in. All we can do is engage in some quid pro quo haggling, informing Ma
that if we allow him to establish an anti-corruption commission, then we expect
judicial reform in return.
Liu Kung-chung is a research fellow at the Institutum
Iurisprudentiae of Academia Sinica, a professor in the Institute of Law for
Science and Technology at National Tsing Hua University and a professor in the
Graduate Institute of Intellectual Property at National Chengchi University.
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