Painting Judges Blue will only Destroy the Justice System

Painting Judges Blue will only Destroy the Justice System
China Times editorial (Taipei, Taiwan, ROC)
A Translation
September 4, 2007

How difficult is it to destroy the Republic of China's (ROC) system of justice? Apparently not that difficult. All you have to do is accuse judges of being Pan Blue in their political affiliation. Just look at how judges have been vilified over the past two days. First the president went on TV and alleged that seventy to eighty percent of all judges were Pan Blues. He accused them of being concerned only with Blue and Green, not black and white. The president no sooner finished his diatribe, than the Executive Yuan conveniently chimed in. The Government Information Office (GIO) called a press conference demanding that the Kuomintang (KMT) make public how many Judicial Yuan officials have been party members since martial law was lifted. The GIO demanded that any judge who had participated in a court case involving political figures disclose his party affiliation, if any, on the Internet. Rather than quietly await a possible guilty verdict, why not launch a preemptive attack by accusing the entire judicial system of Pan Blue political bias?

How much have members of ROC judicial system, from high level administrators to district court judges, quietly sacrificed over the years to establish an independent and professional judiciary? How much wisdom and intellect has been invested in judicial reform? Now that it is time to reap the rewards, all it takes nullify the entire legal community's years of sacrifice, is a single speech from President Chen and a single press conference from the GIO. With such a president and such a ruling party taking the lead in destroying the destroying public trust in the nation's judiciary, what point is there in judicial reform?

After this, how will judges be able to try political cases? We already have our answer. Any verdict favorable to the Green Camp will be trumpeted as "Solomonic," as the "Triumph of Justice." Any verdict favorable to the Blue Camp will be castigated as "concerned only about Blue and Green, indifferent about black and white," or even denounced as the "Demise of the Judiciary." The judge will be asked to reveal his party affiliation. He may even be publicly slandered and vilified. A nation's judges are only permitted to find opposition party leaders guilty. They are not permitted to rule against ruling party officials. Is this the "Triumph of Justice?" What word is there for this kind of intimidation of judges, other than "Political Terror?" Can judges be liberated from political influence? If judges live in fear, can they really champion justice for the common man?

Remember the KMT/PFP lawsuit to nullify Chen Shui-bian's "election" in 2004? The court ruled against the KMT/PFP. Following the court's decision the Democratic Progressive Party (DPP) ringingly declared that the judiciary had returned a just verdict, granting Chen the justice he deserved. Using President Chen and the DPP's logic, couldn't the KMT dismiss the judges' ruling back then as "concerned only with Blue and Green, indifferent to black and white?" Couldn't it have demanded that the presiding judge make a public admission of his political affiliation?

If President Chen were really concerned about "judicial intervention in politics," that would be one thing. Alas his tirade against the judiciary contained an escape clause. Last month he publicly accused the judiciary of attempting to influence the presidential campaign. He touched off a storm of controversy in legal circles. His allegations were considered attempts to influence the verdict in the Ma Ying-jeou case. This time he publicly accused seventy to eighty percent of the members of the judiciary of harboring Pan Blue partisan political bias. Suddenly changing the subject, he said that he once promised to resign if found guilty in the State Affairs Confidential Expense case. He said that as long as the judiciary is independent and not subject to Blue, Green, or Red Shirt Army political influence, then of course his promise to resign is binding upon him. But then he added "If this is not the case however, then I would have to reconsider." Isn't his meaning clear enough? If when the time comes the judge in Chen's State Affairs Confidential Expense case finds him guilty, Chen intends to accuse the judge of Pan Blue political bias, citing it as an excuse to renege on his promise to resign. We can now safely predict the kind of vilification the judge in Chen's State Affairs Confidential Expense case will be subjected to in the event he rules against Chen and disappoints Green Camp expectations.

Government Information Office Bureau Chief Hsieh Chi-wei joined the lynch mob. He publicly demanded that judges presiding over trials of political figures reveal their political affiliation on the Internet. What he failed to do was to cite any legal basis for such demands. Still less did he consult Article 80 of the Constitution: "Judges must transcend partisanship, rule independently based on the law, and resist any and all interference." Instead he righteously intoned: This is "transitional justice." We feel compelled to respond: "Transitional justice? Transitional justice? How many injustices do you intend to commit in the name of transitional justice?" The ruling party, not content to destroy the judicial system, now wants tarnish the concept of "transitional justice." Nobody denies that during the martial law era the judicial system was under the thumb of the party/state system. But if the "lifting of martial law" qualified as a form of transition, wasn't its biggest contribution, wasn't the most important "justice" it established, the elimination of "Big Brother" from inside your head? Even judges' heads? Now the ruling DPP wants to use these obscene methods to intimidate judges. What is this, but brand new "Big Brothers," this time in Green uniforms?"

As he ponders the realpolitik of his political power, we hope Chen Shui-bian and the Green Camp will cease its abuse of the judiciary. Perhaps this is an unrealistic hope. The legal community must prepare for vicious attacks. Given the political climate, the only way judges can withstand vilification is to rededicate themselves to comporting themselves more professionally and rendering more independent judgments.

中國時報 　2007.09.04
政治抹藍法官 只會摧毀司法
中時社論

要摧毀台灣的司法很困難嗎？好像一點都不難，給所有法官扣頂藍帽子就成了！看看這兩天法官們是怎麼被政治糟蹋：先是總統上特定電視台接受專訪，直指法官超過七八成都偏藍，還說司法只問顏色，不問是非；總統話才剛說完，行政院立即有效率的配合，新聞局馬上就開記者會要求國民黨公布解嚴至今在司法部門有多少黨員？更要求凡涉及政治人物司法案件的法官，應上網公布其黨籍或有無黨籍。反正千言萬語一句話，與其靜待司法判決，不如先藉「政治抹藍」毀掉司法！

過去幾年，台灣的司法體系從司法行政高層到基層法官，為營造一個獨立、專業的審判空間，曾經默默付出多少努力？一樁樁司改方案的推出，又是費盡多少智慧與心力？如今正逢成果收割之際，就陳總統的這麼一句話，新聞局的這麼一場記者會，整個法界夙夜匪懈的付出與奉獻，就這麼輕易地給歸零了！試問：有這樣的總統，有這樣的執政黨在帶頭摧毀司法官的形象，司法改革努力個半天究竟是所為何來？

至今而後，法官還能怎樣審理政治案件呢？答案不已經在那兒了嗎？凡是判綠營勝訴的，就是「公正不阿」，就是「彰顯正義」，而凡是判藍營勝訴的，就是「只問顏色，不問是非」，甚至是「司法死了」，必須公布法官黨藉，甚至不惜公開將之詆毀鬥臭。一個國家的法官只准判在野黨有罪，不准判執政黨敗訴，這還能叫「司法正義」嗎？這種威嚇能不叫所有司法官都面臨「寒蟬效應」嗎？能不讓所有法官在審理相關案件時心中全無陰影嗎？如果司法官都開始害怕，他們還能為弱勢小民伸張正義嗎？

還記得國親對陳水扁所提的「當選無效」訴訟嗎？當時法院判國親敗訴定讞，民進黨在判決後立即聲明司法已經還了陳總統一個公道，如果沿用陳總統與民進黨今天的邏輯，國民黨是不是也可用同樣的推理，硬指法官的判決是「只問顏色，不問是非」？甚至強要承審法官公布黨籍呢？

其實陳總統若真是為「司法介入政治」憂心或許還好，問題是他對司法的指控還是預埋了重要伏筆，一個多月前他就曾公開指控司法人員企圖左右各黨總統候選人的競選活動，當時已經引發法界爭議，被認為是企圖影響馬案判決；這次他又公開說有超過七、八成的司法人員可能立場偏藍，接下來語鋒一轉，表示他曾說國務機要費案一審有罪就下台，如果司法人員獨立超然，不受藍綠、政治、輿論、紅衫軍等影響，他說過的話當然算話，但「如果顛倒，就要考慮」。這不等於已經挑明了說了嗎？如果屆時法官對國務機要費案的一審判決有罪，他大可以法官立場偏藍為由，名正言順地拒絕下台了！我們現在或許就可以模擬一下，屆時審理國務機要費的法官所做出的判決，若是既不符扁意，又不符綠營預期，他會怎樣地被修理！

同樣加入羞辱法官的是行政院新聞局長謝志偉，他公開要求處理政治人物司法案件的法官須上網公布其黨籍或有無黨籍，卻不交代這種做法的依據在哪裡？更不問憲法第八十條早已經揭示：「法官須超出黨派以外，依據法律獨立審判，不受任何干涉。」卻振振有詞地美其名曰：這是「轉型正義」。我們真想在這說一句：「轉型正義、轉型正義，如今台灣多少罪惡假汝之名而行！」執政黨摧毀司法還不滿足，還想把「轉型正義」這個概念也一併玷汙掉。沒人否認戒嚴時期的司法確曾受到黨國體制的箝制，而如果「解嚴」算做是一種轉型，那麼它最大的貢獻，所塑造的最重要「正義」，不就是將人們（包括法官）心中的「小警總」都去除了？如今執政黨藉由這種下流手段公開威嚇法官，不正是擺明要將全新的「綠色小警總」，重新樹立在所有法官的心中嗎？

在捍衛政權的現實考量下，期待陳水扁與綠營此刻停止糟蹋司法，恐怕是奢求，反倒是法界得要對未來更凶險的攻擊做好心理準備了。而在這種政治惡質的環境下，法官們也惟有以更專業的判決、更獨立的審判，才能回應所有政治的抹黑。