Thursday, October 15, 2009

What the Supreme Court Must Do

What the Supreme Court Must Do
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
October 15, 2009

The Supreme Court has reversed the High Court's detention of Chen Shui-bian. By doing so, it has turned the law on its head. Its job is to rule on the constitutionality of the law. Instead, it ruled on whether Chen Shui-bian was a flight risk. By ruling on the facts of the case, instead of on the constitutionality of the law as such, the Supreme Court exceeded its authority. Since the High Court is responsible for ruling on the facts of the case, it has rightly and properly continued to detain Chen Shui-bian.

Successful Supreme Court appeals by defendants charged with felonies are as rare as hen's teeth. The Chen corruption case is a high profile media case. It is the focus of public attention. The Supreme Court has done the public a disservice. Not only has it failed to assert its authority, it has disgraced itself.

The Supreme Court failed to assert its authority for institutional reasons. Its judges lacked of a sense of mission. They failed to render their best legal opinion. They tarnished the "Supreme" in "Supreme Court."

Consider the institutional factors. To assert authority, one must speak with one voice. But our Supreme Court has many Chambers, 13 Criminal Courts, and seven Civil Courts. Each is the king of its own hill. Each interprets the law its own way. No one pays any attention to anyone else. Only when serious discrepancies appear, do they convene a criminal court or civil court conference to hammer out a consensus.

Current practice admittedly highlights the existence of judicial independence. Divergent legal opinions have the opportunity to emerge and be heard. But if the process fails to work as expected, if the various courts each go their own way, if they view themselves as discrete entities, they may lose sight of their responsibilty as final arbiters, leaving the public increasing adrift.

For example, the full court sent the case back to the lower courts, rescinding Ah-Bian's detention, forcing the system to repeat the process a second time. It appeared to be upholding human rights. It appeared to be acting responsibly by re-trying the case. But it failed to offer a convincing legal basis for its opinion. Instead, it merely left people with the impression that it was making light of its duties. It obfuscated the duty of the court, namely, to rule according to the law.

The Supreme Court is responsible for ruling on the constitutionality of the law. It should respect the lower court's legal decisions. In practice however, it seldom does. The High Court often complains that the Supreme Court exceeds its authority, fussing over individual cases, picking over minor details. The Supreme Court often has objections. But instead of making clear how lower courts ought to rule, it often uses weasel words such as "is apparently," or "would benefit from further study." Since the Supreme Court has no confidence in in its own rulings, and is unwilling to assume responsibility, how are lower courts supposed to follow their lead? Over time, this has resulted in a Supreme Court that evades its responsibility instead of asserting its authority.

Therefore, do not blame the full court for rescinding the order to detain Ah-Bian. The judges responsible are the product of long immersion in the unique culture of the Supreme Court. They failed to realize that their legal reasoning would be subjected to close public scrutiny, and that the distinction between the facts of the case, and the letter of the law would suddenly became so clear. They failed to realize that their ruling would be the object of such intense public suspicion.

This legal culture has a long history. It has killed public confidence in the trial process. The aforementioned institutional factors are part of the problem. But judges can make changes. It all depends on how judges see their duty. Judges have no rank. But they do have different responsibilities. Judges in courts of final appeal are authorized to rule on the basis of the law. They must expect much of themselves. They must display boldness and erudition. Only then can they establish a credible justice system.

If judges in courts of final appeal have any self-respect, they will find ways to minimize differences of opinion. They will stop acting like petty despots, and provide lower court concrete legal guidelines worthy of respect. They will consider the views of those making appeals. They will not evade responsibility by automatically sending cases back to lower courts. They will not ignore the suffering endured by people trapped in the legal process. They will look further ahead. They will leave their private offices, their piles of legal documents, and ask themselves how they can render legal judgments that will inspire future generations.

All this will take time. But as long as judges are willing to dive in, the legal culture will gradually change. A virtuous cycle will lead to improvements. An individual case such as this can lead to the establishment of new values. Judges in courts of the third instance must be the cream of the crop. They are the key to the administration of justice. Starting over with such standards, judges in courts of the third instance must not to allow the trial process become an object of public ridicule or worse, public indifference.

The Supreme Court should value its "Supreme" label. It should ensure the quality of the trial process. This is what the Supreme Court must do. Nothing more, and nothing less.

2009.10.15 04:17 am













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