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.

最高法院該做的事
【聯合報╱社論】
2009.10.15 04:17 am

最高法院撤銷高院羈押陳水扁的裁定，栽了一個大筋斗。明明是法律審，卻論及陳水扁可不可能逃亡的事實判斷；既是事實爭議，身為事實審的高院當然不客氣，理直氣壯地繼續羈押陳水扁。

重罪羈押能向最高法院抗告成功的案例鳳毛麟角，扁案又是眾所矚目的大案，最高法院無法令出眾服，不但立威不成，且顏面無光。

最高法院無法建立權威，固有制度上的原因，而法官欠缺承擔責任的使命感，沒有展現「最優」法律見解的的企圖心，益使「最高」的招牌蒙塵。

從制度上的原因探究，要建立權威，就不能一門多調；但我們的最高法院有多個分庭，刑庭十三庭，民庭有七庭，各擁一座山頭，各持法律見解，誰也管不了誰，只有當發現重大歧見，召開刑事庭或民事庭會議討論後，才會形成一致的看法。

現行做法固然彰顯審判獨立的可貴，使各種法律意見有頭角崢嶸的機會，但如運作失靈，各庭各自為政，把自己看成法院的一小部分，容易失去擔起最後把關責任的使命感，而人民則益發無所適從。

正如作成扁撤押裁定的合議庭，發回案件，讓羈押程序重走一遭，好像就盡到了維護人權、重新審查的責任；但因沒有提出擲地有聲的法律見解，反而給人輕忽職能的感覺，也混淆了法院就法論法的功能。

最高法院既是法律審，本應在法律見解上引領下級法院，但在實務運作上卻天差地遠，二審常抱怨最高法院撈過界管太多，老在案件事實上作文章，甚至在枝節上計較。何況，即使表示意見，最高法院法官並不直接挑明該怎麼做，發回的理由書裡常可見到「似乎」、「不無研求餘地」等用語。倘若最高法院自己都沒信心，沒把握，也不想負責任，則下級審如何依循？久而久之，就形成我們最高法院獨有的「求免責多於立威信」的審判文化。

因此，不必苛責作出扁撤押案的合議庭，這些法官早就浸潤在最高法院獨有的文化中多時。他們只是沒有料到：裁定理由會受到社會各界的嚴格檢視，事實和法律的分際會突然被劃得這麼清楚；他們也沒有料到，要為一次發回的裁定面對這麼多的檢視和質疑。

這種審判文化的形成其來有自，成為扼殺審判信度的可怕殺手。前述提及的制度因素雖有影響，法官卻非毫無改變的著力空間，改變的最大動力在於法官怎麼看待自己的審判使命。法官雖無大小之別，然職有分工，終審法官握有案件定讞、法律適用當否的權限，應當自我期許以相當的氣魄和學養，開創出有見解之審判系統。

終審法官如果看重自己，就會想辦法減少見解的歧異，像個老大哥的樣子，給下級審具體而值得敬佩的指引；更會站在訴訟民眾的立場去思考，不要僅為躲避責任而發回案件，無視當事人陷於纏訟的苦痛；進而會把眼光放遠，離開獨居的辦公室、成堆的文書卷證，為如何作出啟發後世的一篇篇經典判決而努力。

這些都需要時間經營，但只要法官們願意投注心力於此，審判文化就會慢慢改變，產生良性的循環，帶動審判的精緻化，由一件件個案重新建立起審判的新價值。三審法官應是法官中的精選，是影響司法審判風氣的重心；由此標準再出發，三審法官著實責無旁貸，不能任由審判笑罵由人，還無動於衷。

最高法院應當看重自己的「最高」品牌，細心呵護審判的品質；最高法院該做的事，莫過於此。