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Draft judges’ law is still a ‘dinosaur’
By Lin Feng-jeng 林峰正
Jan. 11 was Law Day in Taiwan. By coincidence, the draft judges’ law, delayed
for more than 20 years, passed its first reading in the legislature shortly
before Law Day. Barring unforeseen circumstances, the bill should be passed into
law during the next legislative session.
The problem is that if the bill goes through as it stands, it will not only fail
to get rid of “dinosaur” judges, but will incubate, hatch and foster even more
“dinosaur” judges.
Take for example the mechanism for removing incompetent judges from their posts
or the system for evaluating judges. The Judicial Yuan unabashedly insists on
keeping the evaluation system within its own walls and even rejects demands from
civic groups that representatives of judges, prosecutors, lawyers and other
professional groups that sit on evaluation committees be elected by those
groups. Instead, the Judicial Yuan wants to give its own president, the Ministry
of Justice and the Bar Association the power to appoint committee members.
The draft law also provides that the six evaluation committee members who are
supposed to be academics and upstanding citizens would be selected by having the
legislature, the Control Yuan and the Judicial Yuan each appoint two people.
Anyone can see that this arrangement gives the nation’s president, whose party
holds a majority of seats in the legislature and who has the power to appoint
the chiefs of the Control and Judicial yuans, complete control over the
appointment of all six academic and -upstanding citizen committee members. That
would clearly not be in keeping with the political principles of checks and
balances and division of power.
Even more absurdly, the wording of the current draft of the law flies in the
face of a consensus that had existed between civic groups and the Judicial Yuan
for many years, in that the bill does not allow parties to judicial cases to
lodge complaints about the judges who handle their cases.
So the existing bill completely denies victims of miscarriages of justice the
possibility of directly protesting their innocence. At the same time, the
Judicial Yuan insists that a judge’s opinion on the application of law cannot
serve as the basis for his or her evaluation. In other words, if there is a
“dinosaur” judge, nothing can be done about it.
Although the Judicial Yuan has accepted the suggestion by civic groups that all
judges be evaluated at regular periods, it only agreed that these evaluations be
done every five years. Instead of having the evaluations done by a judge
evaluation committee including external members, the Judicial Yuan wants to
arrange them itself, and it is not willing to make the evaluation results
public. Furthermore, the adjudicators of the judicial disciplinary court that
would make a final decision on disciplinary measures against judges would
themselves all be judges.
It can be seen that the system for evaluating judges in the draft law does not
offer anything new compared with the existing system, under which members of the
public can report judges directly to the Control Yuan. In fact, it may even be a
step backward.
The call from civic groups for all judges to be subject to evaluation has been
sidetracked into a closed-door procedure within the confines of the Judicial
Yuan, rendering it completely ineffective as a means of oversight. It also runs
contrary to the promise made by President Ma Ying-jeou (馬英九) in the “declaration
of human rights for the new century” that formed part of his election campaign
to “weed out judges who abuse their powers or are negligent through a system of
regular evaluations conducted by people from various professional backgrounds
and involving public participation.”
The hoped-for system for evaluating judges and weeding out the bad ones has been
changed beyond recognition, leaving “dinosaur” judges with nothing to fear.
Lawmakers have shown no sincere will to promote reform of the mechanism for
selecting new judges, because the Judicial Yuan is unwilling to abolish the
system of selecting judges through examinations.
Most people would agree that this system is not effective in choosing truly
qualified legal minds to serve on the bench, yet the Judicial Yuan, for the sake
of its own interests and convenience, is not willing to dispense with this
self-serving arrangement. The result will likely be that generation after
generation of “dinosaur” judges will continue to come to office through these
exams.
There are other key reform issues to do with the judges’ law. Will external
members sit on the Judicial Personnel Review Committee, which is in charge of
important judicial personnel matters within the Judicial Yuan, such as judge
assignments and senior judge selection, so as to promote transparency and
prevent pernicious practices such as officials covering up for each other?
Another problem is that judge training is done by the Ministry of Justice rather
than by the Judicial Yuan, giving the executive arm of the government a free
hand to “train” the judiciary. These and other deeply ingrained defects are key
issues that will determine whether the proposed judges’ law can achieve its
purpose, but they have all been shot down, or at least not given the attention
they deserve, in the procedure leading to the bill’s first reading in the
legislature.
Everyone says we should get rid of “dinosaur” judges, but if the draft judges’
law goes ahead in the form that passed its first reading the other day, we might
as well tell the public to give up any hope of that. The countdown to the bill’s
third reading and passage into law has already started, so let’s all join
together to say: “We don’t want ‘dinosaur’ judges and we don’t want a ‘dinosaur’
judges’ law!”
Lin Feng-jeng is a lawyer and executive director of the
Judicial Reform Foundation.
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