The Court Must Restore Trust in Its Rulings

The Court Must Restore Trust in Its RulingsUnited Daily News editorial (Taipei, Taiwan, ROC)
A Translation
August 26, 2010

After several months of searching, President Ma Ying-jeou has appointed Lai Hao-min President of the Judicial Yuan, and Su Yung-ching Vice President. The newly appointed Lai said that the public can no longer tolerate corrupt judges. People have taken all they can take. But corruption-free judges should be a given. The newly appointed president must do more than eliminate corruption. He must restore public trust in the court's rulings. He must restore public confidence in the justice system.

Recently, the number of judicial scandals exploded. Under nearly two decades of ineffectual "judicial self-management," several judges accepted bribes, another attempted to influence the outcome of his son's trial, another devoted more time and energy to his hobby than his duties as a judge, another used his illicit lover as a go between, others consorted with defendants, still others issued rulings utterly inconsistent with common sense. Their perversions of the law and abuses of power have opened the eyes of the public. Even the highest levels of the judicial system have come under suspicion, and seriously undermined confidence in the administration of justice.

In the short term, the new president must clean house and appoint new personnel. He must ensure that trials are once again fair. Cleaning house is not that difficult. The new president must start small. He must set an example. He must decline to attend unnecessary banquets. He must ensure that austerity once again becomes the judicial norm. Judges must no longer be wined and dined by criminal defendants. The air must be cleared. Clean officials must be appointed. The new appointees must be responsible individuals, unfraid to give offense, and willing to make tough administrative decisions. Those seeking favors or backdoor opportunities, those who care more about holding office than assuring justice, and bureaucrats adept at evading responsibility, need not apply. The new president has taken office. The secretary general will resign. The deputy secretary general, the president of the high court, and the president of the Kaohsiung Branch of the Judicial Yuan will all have to be replaced. The new president's first set of personnel appointments must demonstrate a commitment to integrity and responsibility. Only then can he restore the integrity of the justice system.

In addition to cleaning houseand appointing new personnel, rehabilitating the justice system will require breaking up the tight little circles judges currently inhabit. Judges place too high a value on seniority. They defer too much to their superiors. They care more about the judgment of insiders than the judgment of the outside world. They have forfeited their independence. They have formed tight little circles. That is why influence-peddling within their circles is taken for granted. That is why they have forgotten that their raison d'etre is to provide justice for the people. These tight little circles must be broken. Only then will judges have the courage to take responsibility for their rulings.

The new president should immediately examine the role of judges' assistants. He must ensure that presiding judges are actually doing what they are paid to do. He must establish ethical standards and job discipline. He must institute internal controls. He must improve discipline and eliminate indolence. He must root out judges who live abnormal lives. He must find ways to punish and eliminate them. He must show that the justice system is determined to clean house.

Nearly two decades of judicial self-oversight has revealed that judges are too susceptible to emotional appeals. They are unwilling to even criticize their peers, let alone punish them. Therefore we must implement a cabinet system. The cabinet chief's authority must be limited, and commensurate with his responsibilities. This will reverse the harm done by untrammeled judicial self-management.

If one wishes to prevent judicial rulings clearly beyond the pale, one must eliminate undue influence. One must ensure judicial independence. The new president must supervise and assist trial judges, because judicial independence will ensure the quality of judicial rulings, and help regain public trust. If judicial independence creates a sanctuary for judicial abuse of authority however, then judicial independence is rendered meaningless. Only quality judicial rulings can guarantee justice.

Of course, the newly appointed president and vice president of the Judicial Yuan must also minimize concerns about their political affiliations or political positions. There must be no doubts about their impartiality. Lai Hao-min was once an attorney. Attorneys and legal aid groups are the main force behind judicial reform. Lai must convince judges that his administrative decisions will be unbiased, will be in the best interest of the trial process, and that judicial reform will be effective. Su Yung-ching cast many doubts on Judicial Yuan reorganization and reform in the past. Now however, he will be working with Lai. Everyone hopes their roles as professionals will count for more than their friendship with President Ma. Lai and Su must redouble their efforts. They must prove themselves by walking the walk, as well as talking the talk.

Judicial reform is a monumental undertaking. In addition to short term reforms, there must be mid term reform and long term reforms. These include procedural law reforms, changing the way judges are created, improving the structure of the Judicial Yuan, and evaluating the feasibility of a jury system. But some reforms do not require amending the law. They do not require waiting for the results of another judicial reform conference. Judicial credibility has reached new lows. The new president and the judges must adopt extraordinary measures. They must reform the system. They must get serious about cleaning house. Only then can they meet public expectations regarding judicial integrity and the credibility of judicial rulings.

The public can no longer tolerate unjust and slipshod judicial rulings. The new president and vice president of the Judicial Yuan have only one job -- to restore public confidence in judicial rulings. They must do so not merely for litigants, but for society as a whole. Everyone must believe that judicial rulings are uncorrupt and fair.

法院要有讓人民安心接受裁判的信任
【聯合報╱社論】
2010.08.26 03:01 am

經過個把月的尋訪，馬英九總統決定提名賴浩敏、蘇永欽為新任司法院正副院長。新院長賴浩敏疾呼，人民不要貪汙的法官、已經不能再忍耐了；但法官不貪汙，只是基本條件，新院長要做的事，絕不止於此，當務之急是讓人民能夠安心接受裁判，重新相信司法。

近來司法弊案頻爆，不啻將十幾年來開放法官自治後的缺點一一呈現。法官涉嫌收賄、為子關說、兼業比正業用心、外遇情人成為白手套、與案件當事人不當往來、裁判認事用法過度逾越常情等，種種枉法濫權的行徑讓人民大開眼界，連首長都沾上風紀傳聞，嚴重影響司法裁判受到的信賴。

新院長的近程司法改革，首先必須清風氣、正人事，回復審判應有的乾淨空間。清風氣其實不難，從小處做起，只要院長能以身作則，帶領法官謝絕不必要的飲宴應酬，讓簡約風重新成為司法主流，不再受飯局流言所困，風氣即可廓清泰半。正人事，則是要用清廉、肯負責、願意得罪人的首長，作好行政監督工作。那些找人情、鑽門路、愛官位甚於愛司法，推責任一流的官僚，則可免矣。新院長上任，秘書長將請辭，副秘書長、高等法院院長、高雄高分院院長也都出缺，新院長的第一波人事如能展現廉潔、重責任的企圖，很快可以重塑司法新文化。

除了清風氣、正人事，司法新形象還包括打破目前法官的小圈圈文化。法官過於順從期別、庭長權威，在乎圈內人的評價甚於外界，失去獨立的立場，形成小圈圈，才會視圈內關說為當然，忘了司法實為人民存在的基本價值。打破小圈圈文化，才能使法官勇於為判決負責。

此外，新院長應即檢討法官助理的功能，避免法官其實不辦案之弊，並訂出法官倫理規範，整頓法官的工作紀律，透過內部控管，改善自由過度致生散漫的趨勢，找出怠惰生活不正常的法官，想辦法懲處、淘汰，表現司法可以自我除弊的氣魄。

從十幾年來法官自治的經驗可知，法官囿於人情，對自己人連說句重話都不肯，遑論下手處罰，因此必須兼行首長制，適度賦予首長一定的權限，並課予責任，扭轉法官自治放任之害。

若欲防止顯然不合常軌的裁判，除了要杜絕外力的不當介入，如何在避免干預審判獨立的前提下，給予審判法官監督和協助，也是新院長的重要任務。因為審判獨立本是為保護審判品質，贏取人民信任而設，若成為法官獨大的庇護所，即失去意義。判決唯具品質，正義才有保障。

當然，新任的司法院正副院長也必須減少外界對其個人政黨或立場上的疑慮，不容司法受到一絲懷疑。賴浩敏當過律師，民間司法改革、法律扶助團體都以律師為主力，他必須讓法官相信，其行事裁量不會偏於一隅，而是以增進審判品質為最大利益，並能端出司法改革的好菜。蘇永欽過去曾對司法院的組織、改革方向提出不少質疑，將來和賴搭配合作，各方皆期待其專業角色勝過總統好友的角色；賴蘇二人都必須更努力，以言行證明一切。

司法改革經緯萬端，除了近程，也有中遠程改革，如修改訴訟法、改變法官的產生方式、調整司法院的結構，是否實行參審等。然而，有些改革不需要修法，也不必等待再一次召開司法改革會議即可實現；值此司法公信極度低落的非常時代，新院長和法官們，若能實行非常手段，改變文化，認真清理內部，即能回應民眾對司法品操及裁判品質的要求。

對於不公、粗糙的判決，人民確實不能再忍耐，新任司法正副院長的責任無他，讓人民安心接受裁判而已。不但要使訴訟當事人安心，也要使全體國人安心地相信每一件司法裁判都是乾淨而公正的。