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The urgency of judicial reform
By Lin Feng-jeng 林峰正
Saturday, Aug 28, 2010, Page 8
During a speech at the National Industrial Development
Conference on Thursday last week, President Ma Ying-jeou (馬英九) articulated his
thoughts regarding the third and fourth phase expansions of the Central Taiwan
Science Park, work on which has been halted by the administrative court. The
main gist of his speech was that we must find a way for economic development and
environmental protection to co-exist.
Taiwan is a small country that is dependent on economic development, he said,
while conceding that the environment also needs protecting. He then said that,
according to Article 117 of the Administrative Procedure Act (行政程序法) and Article
198 of the Administrative Appeals Act (行政訴訟法), the government is obliged to make
sure companies do not lose out as a result of decisions made based on
information provided by the government at the time a project, like the
industrial park, is being developed. The government’s own position, therefore,
was that work on the Central Taiwan Science Park should not be suspended.
Ma clearly decided it was high time he got involved, taking it upon himself to
comment on a case still being reviewed by the Supreme Administrative Court and
reminding the court of the need to take into consideration the government’s
obligations to manufacturers.
I could not believe what I was hearing. Even before last month’s corruption
scandal involving several members of the judiciary, we had, on more than one
occasion, communicated to Ma the urgent need for reform. We also stressed the
need for this initiative to come from the president. The draft judges’ act, for
example, which will establish an oversight mechanism for judges, has been mired
in the legislative process for a long time now and still has not been passed.
Judicial reform is not just a matter for the Judicial Yuan, it also involves the
Executive, Control Yuan and Examination Yuan. According to Article 44 of the
Constitution, the president’s role, should any dispute arise between two or more
branches of government, is to bring together the officials responsible and get
them to come to an agreement.
In this instance, we were not asking anything out of the ordinary, just that Ma
do his job and get all of the departments responsible together so we could get
judicial reform under way. We also wanted him to establish a special judicial
reform commission at the Presidential Office, which we envisaged as a platform
on which judicial reform could be debated and policy created and implemented.
These suggestions were made six months ago, but the president responded that he
did not wish to give the public the impression he was meddling in the judiciary.
Although Ma said he fully supported the idea of judicial reform, he said he was
reluctant to come across as heavy-handed, and so did not feel it was appropriate
to establish such a commission in the Presidential Office.
Many felt Ma was being excessively conservative; others failed to understand
what the recommendations had to do with meddling in the judiciary. Even so, he
is the president, so what could we do? What he says goes.
That said, many people jumped at Ma’s invoking specific laws in his support of
the development of the science park. It is not the president’s place to get
involved with a case currently under review, as to do so clearly constitutes
interference in the judicial process. The president should give the reviewing
judges ample space to make their own decision. The Presidential Office, however,
was quick to clarify that Ma was not criticizing the court’s decision, nor was
he trying to direct the court, so his words should not be interpreted as
judicial interference.
Perhaps, as the Presidential Office said, Ma’s words were indeed meant as a
disinterested presentation of the facts, devoid of any desire to interfere with
judicial proceedings. However, we all know how difficult it is to maintain the
independence of the judiciary. In this context, whether the president’s words or
actions have any influence is up for discussion, but the mere possibility that
they do means this kind of thing ought to be avoided as much as possible.
First, Ma talks of his reservations about pushing judicial reform, then he
invokes specific legal clauses to make his case for supporting the development
of the science park. Perhaps somebody could point out to me exactly where he
draws the line between interfering with the judiciary and leaving it alone? What
is the point in fretting that embarking on reform could be interpreted as
interfering, only to comment on particular cases that are currently under
review?
We contend that Ma’s words were born of desperation, and not his concerns over
what impact the suspension of work on the science park would have on industry.
This time, however, it will take more than clarifications and explanations to
put an end to criticisms that Ma is meddling. The best response to these
criticisms, especially in the face of the recent corruption scandals that have
rocked the judiciary, would be for Ma to be more explicit about his plans for
judicial reform, and how he anticipates going about it.
Lin Feng-jeng is a lawyer and executive director of the
Judicial Reform Foundation.
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