Judicial Yuan Appointment Must Transcend Partisan Politics

Judicial Yuan Appointment Must Transcend Partisan PoliticsChina Times editorial (Taipei, Taiwan, ROC)
A Translation
July 22, 2010

Summary: Judicial Yuan President Lai Ying-chao was resolute about tendering his resignation. He was determined to assume responsiblity for systematic corruption among High Court judges. President Ma has accepted Lai's resignation. He has asked Judicial Yuan Vice President Hsieh Chai-fu, who tendered his resignation at the same time, to remain until a successor can be found. The Special Investigation Unit is investigating High Court judges. This has shattered the credibility of our justice system. But President Lai's unwavering resignation was a rare demonstration of political responsibility. He earned the public's respect, and set an example for his peers.

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Judicial Yuan President Lai Ying-chao was resolute about tendering his resignation. He was determined to assume responsiblity for systematic corruption among High Court judges. President Ma has accepted Lai's resignation. He has asked Judicial Yuan Vice President Hsieh Chai-fu, who tendered his resignation at the same time, to remain until a successor can be found. The Special Investigation Unit is investigating High Court judges. This has shattered the credibility of our justice system. But President Lai's unwavering resignation was a rare demonstration of political responsibility. He earned the public's respect, and set an example for his peers.

Does anyone remember how former Prosecutor General Chen Tsung-ming refused to step down despite public skepticism about his integrity? With his swift resignation, President Lai demonstrated far more character. That was obvious. His resignation was so unequivocal even the president was taken by surprise. Lai resigned only as Judicial Yuan President, not as a High Court judge. This would have enabled the president to keep Lai on as a High Court judge. Lai did not realize this would significantly limit the president's options regarding personnel appointments. Therefore special importance was put on him simultaneously resigning as High Court judge. Simultaneously resigning his posistion as High Court judge would allow the president to recruit from circles other than current judges. Lai was both thoughtful and honorable. President Lai's willingness to assume responsibility ended any hemorraging within the justice system. It raised public hopes for judicial reform. has opened up new horizons. It allowed the administration to carefully consider the next wave of judicial appointments and its policy direction. The administration should consult a wide range of people before making its final decision.

The Special Investigation Unit's handling of cases has inspired the public to consider the establishment of an Independent Commission Against Corruption, or ICAC. Similar calls have been heard everywhere. But the design of the Special Investigation Unit and its recent moves mean it is essentially the same as an Independent Commission Against Corruption. If one insists on having the name as well as the game, one could simply rename the Special Investigation Unit the "Independent Commission Against Corruption." The first chief of the Special Investigation Unit was improperly selected. Chen Tsung-ming has resigned. We should not throw the baby out with the bath water. We should not assume that establishing a separate Independent Commission Against Corruption is the only way. The key is systemic reform of the justice system. We must eliminate its defects while retaining its virtues. We must establish an effective exit mechanism for judges. We must eliminate diseased tissue while preserving the healthy. We must avoid untoward eventualities. After all, improving the quality and efficiency of the trial process is not the responsiblity of the Special Investigation Unit or an Independent Commission Against Corruption. Judicial integrity is merely a minimum requirement for the justice system. The only way to improve the trial process is to improve both the trial system and judicial appointees.

Former Judicial Yuan President Ong initiated judicial reform, but his campaign was only a partial success. Now President Lai has resigned. Judicial reform can no longer be delayed. Everyone agrees that judicial reform is not a panacea. It cannot effect an overnight transformation. Therefore one must appoint a Judicial Yuan President with a sense of mission. One must allow enough time for knowledgeable professionals to review the Big Picture and eliminate all obstacles. One must not maintain the status quo and continue muddling along as before.

What kind of abilities should the next Judicial Yuan president have? He must have a deep understanding of the law. He must have an impeccable professional reputation. He must have considerable administrative ability. He must be able to transform the justice system into a high quality, professional service provider. With judicial independence as a precondition, he must find a way to increase the quality and efficiency of the justice system. The ability to manage the "economics of law" will be indispensable. Public expectations are running high. Unflinching determination will be essential in leading the trial system out of its crisis of public confidence. Allow us to speak frankly. Taiwan has many talented individuals. But few candidates meet the aforementioned requirements. The president will have to choose carefully.

We would like to take this opportunity to remind the ruling and opposition parties that judicial reform should transcend partisan political struggles. It must not be rooted in selfish calculation. The "Justice Act" has remained stalled in the Legislative Yuan for years, unable to see the light of day. The result has been the decline of judicial discipline. The mechanism for evaluating and eliminating unfit judges remains ineffective, nothing more than the result of political struggle. How can one not be distraught? Judicial Yuan appointments impact judicial reform. They determine whether judicial reform will be able to make a fresh start. The ruling and opposition parties must not view this issue purely from partisan perspectives. They must not turn judicial appointments into partisan political struggles. Too much political calculation is not healthy to the reform of the trial process. The ruling and opposition parties must allow the nation to recruit the talent it needs.

The President of the Judicial Yuan is chosen from among High Court judges. He or she will preside over constitutional interpretations and play a key part in the next wave of judicial reforms. President Lai's departure has left the president with a personnel appointment decision that could make or break the Republic of China's democracy and its rule of law. When the president makes his appointment, he should throw open the doors of his mind. He should ask himself what the real requirements are for judicial reform. He must find good people to assume this heavy responsibility. The future of the rule of law in the Republic of China depends on it.

中國時報 　
2010.07.22
社論－遴選司法院長應超越政黨鬥爭
本報訊

由於司法院賴英照院長堅決請辭，以示對於高院法官集體收賄疑案負責，馬總統業已接受其辭呈，並請同時請辭的謝在全副院長代行職務，以待後任。特偵組偵辦高院法官一案，固然重創司法信用，但是賴院長的果斷辭職，卻是多年以來難得一見顯示何謂政治責任的空谷足音，令人尊敬，也足為典範。

還記得前檢察總長陳聰明曾經如何面對外界的質疑而不肯辭職嗎？賴院長的下台身影顯然優雅的多。誰都看得出來，他的辭職甚至讓總統也出乎意料，這才有慰留不成而只允辭去院長不允辭去大法官的折衷。殊不知賴院長辭職只辭院長實質上限縮了總統的人事選擇空間，還因此特別強調隨時準備讓出大法官的位置，以容總統可以不必囿於只從現任大法官中求才，可謂設想周到而且光明磊落。賴院長勇於負責，不僅為司法負傷起了止血的功用，也為接下來國人高度期待的司法改革，打開了一個全新的空間，值得期待，也讓主政者可就下一波的司法人事乃至政策走向，審慎思考，廣徵意見，再為決定。

特偵組的辦案行動，讓社會聯想到廉政公署的議題，相關呼聲一時之間似乎甚囂塵上。稍微思考一下，就可知道特偵組的設計以及這次施展鐵腕，原就是廉政公署的替身，如果必須名正言順，將特偵組更名為廉政公署，也不妨事。特偵組首任總長擇人不當，陳聰明黯然去職，不該因人廢制，以為另設廉政公署才是出路。問題的關鍵，是在如何調整司法體質，汰劣存菁，建立有效的法官退場機制，去腐生肌，避免不應有的事態發生。畢竟審判品質與效率的提昇，不是靠特偵組或廉政公署來建立的；司法清廉只是最起碼的要求，從制度與人事入手提昇審判品質與效率，才是根本之圖。

翁院長時代的司法改革，行過半途而未竟全功，現在賴院長又告去職，司法改革真的不能再蹉跎了。誰都同意，司法改革沒有靈丹妙藥，無法期待一夕之間脫胎換骨；唯其如此，才必須要任命一位具有高度使命感的司法院長，有充足的時間縱深與專業智慧，能為全局之思考，排除萬難，絕不能繼續趑趄不前，安於現狀而得過且過了。

一個必須熟加考慮的問題是，下任的司法院長應該具備什麼特殊才能？他除了深厚的法學知識，崇隆的專業聲望之外，可能特別需要足夠的行政能力，將司法體系當作一個提供優質專業服務的部門，在符合審判獨立要求的前提條件下，找到制度上及實踐上強化品質與效率的方法，以成功輸出正義。也因此，法律經濟的管理學問，或許不可或缺。當然，回應當前社會的殷切盼望，任事的魄力，尤其是領導審判體系走出公信力困境的意志與決心，同樣是必要的條件。容我們坦率以告，台灣人才濟濟，但是符合以上多種要求的人選，並非俯拾即是，實在需要總統潛心的選才。

我們也要藉此機會提醒朝野政黨，司法改革應該是一個超越政黨鬥爭的領域，也容不下本位的盤算與私心。《法官法》在立法院中橫遭擱置經年，不見天日，弄到司法風紀敗壞，卻在法官評鑑及淘汰機制上仍然一無用武之地，就是過度政治角力的結果，能不令人扼腕？司法院長的人選，關係到司法改革能否再度邁步出發，無論朝野政黨，都不該只從政黨本位著眼，忙不迭地將司法人事捲入政治鬥爭的漩渦；過多的政治算計，並不適合審判部門的體質，朝野都該讓出足夠的空間，以便遴選者從容為國舉才。

司法院長是由大法官兼任，主持釋憲大業與下一波司法改革大計的關鍵人物。賴院長留下了一個關係台灣民主法治成敗的職位，總統的人事抉擇，應該本諸大開大闔的胸襟，調查司法改革的真正需要，善得其人而委之以重任；台灣的法治前途，實所賴之。