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Judicial oversight
needs tactfulness
By Su Yiu-chen 蘇友辰
Recently, the Judicial Yuan has run large advertisements in the press to show
its strong determination to push for judicial reform. The ads have received much
public attention and they are an encouraging sign.
On July 6 last year, the Judges Act (法官法) was enacted, putting in place clear
regulations about the employment, protection, evaluation and dismissal of judges
and prosecutors. The Judge Evaluation Commission (JEC), initiated by the
Ministry of Justice on Wednesday, deals with the dismissal and overall
evaluation of individual judges. There is also a judicial disciplinary court
scheduled to start operating on July 6 this year, which will review the
performance of judges and is empowered to put them on trial or even dismiss
them.
According to the Control Yuan’s figures, under the system that was in place from
February 1999 until the end of last year, only 10 judicial officers were
impeached and subsequently dismissed by the Judicial Yuan’s Public Functionary
Disciplinary Sanctions Commission (PFDSC). Among the 10, half were judges and
the other half were prosecutors. This falls way short of the public’s
expectations.
Will the situation be improved by the Judges Act? Most experts say it is
unlikely.
According to the new evaluation system, if one of the parties involved is
unsatisfied with the conduct of a judicial official during an investigation or
trial, they can file a complaint with the relevant authorities or the Control
Yuan. They can also appeal to bar associations and civic groups — such as human
rights or judicial reform groups — officially recognized by the Judicial Yuan.
If an investigation reveals that a case is eligible for a full review, an
application would then be filed with the JEC, which is responsible for
determining whether the judicial official should be punished. If so, the
committee would report the case to the Judicial Yuan, which would transfer it to
the Control Yuan for an impeachment review. The Control Yuan would then send it
back to the Judicial Yuan’s court of judicial discipline for a trial and then
the court would decide whether the official should be dismissed or relieved of
their responsibilities.
With such a complex system in place, the whole process involves a considerable
amount of overlap and duplication, which seems like a waste of social and
judicial resources. It could also put the judicial official under review through
a lot of unnecessary suffering, not to mention the fact that justice delayed
could turn into a case of justice denied.
The public, including lawyers and judicial reform groups, are expecting the
implementation of the new system to force all the unpalatable “dinosaur judges”
into extinction. However, looking at the controversial ruling in a sexual
assault case which triggered the “White Rose” movement, the controversy lay
mostly in the appropriateness and applicability of the law. According to the
Judges Act, it is not permissible to review rulings for individual cases which
rest on an interpretation of the law, and it is certainly not possible to dole
out any reprimands or disciplinary action for these.
The media recently reported that a controversial Kaohsiung District Court judge,
surnamed Ke (柯), liked to humiliate parties in his court and even their lawyers,
with his colorful and often offensive choice of words. Although his behavior was
acknowledged to have violated people’s human rights and damaged the reputation
of the judiciary, the PFDSC merely suspended him for one year. If the
implementation of the act cannot push the judicial disciplinary court to issue
tougher punishment, its effectiveness in eliminating poor judges will certainly
be questionable.
In order to enable the JEC to carry out its task of removing bad judges, seven
of the 11 commission members were chosen from outside the system. The Judicial
Yuan believes that this can avoid professional bias and the practice of judges
sheltering one another, and improve the commission’s independence and
credibility.
Having the JEC taking over certain duties of the PFDSC does have its advantages,
but what happens after the JEC members have assessed a given case? Are they, for
example, to pass it on to the Control Yuan for an intermediary review to decide
whether an impeachment is to go ahead? And then how would the five judges of the
court of judicial discipline deal with the case? It is not clear whether the
seven commission members from outside the system will actually be effective in
facilitating the removal of bad judges from the system.
I remember Chu Chao-liang (朱朝亮) saying that prosecutors do not necessarily
always desire a successful prosecution. Sometimes they merely want to teach the
accused a lesson by virtue of the ordeal they go through. Similarly, some
believe that with the new evaluation system, bad judges do not necessarily have
to be dismissed or relieved of their duties, but rather putting them through an
ordeal is sufficient.
Still, if the motives of the process are illegitimate or malicious, it would be
as inhuman as what renowned law professor C.V. Chen (陳長文) described as people in
judges’ robes abusing their own people. Such an attitude is also inhuman and
should be avoided.
Su Yiu-chen is chairman of the Chinese Association for Human Rights.
Translated by Eddy Chang
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