Judicial Self-Management Requires Judicial Self-Discipline

Judicial Self-Management Requires Judicial Self-DisciplineUnited Daily News editorial (Taipei, Taiwan, ROC)
A Translation
August 17, 2010

The Judicial Yuan has suspended three judges for influence-peddling and judicial misconduct. They have been handed over to the Control Yuan for prosecution, in the hope that the reputation of the justice system can be salvaged. The justice system has recently been plagued by one disease after another. The root of the problem is the failure of "judicial self-management." This failure has even cast doubt on the desirability of judicial independence. Clearly it is time to rethink judicial reform.

In 1995, a Taichung District Court judge refused to submit his verdict to the executive branch for approval. His action touched off a judicial independence movement. Since then the decisions of judges no longer require prior approval. The judiciary was fully liberated from executive interference. Eventually judges won the right to appoint personnel and assign cases, all under the banner of judicial independence. Judicial self-management took a giant step forward. Administrative oversight however, took a giant leap backward.

Fifteen years later, repeated incidents of judicial misconduct, judicial transgressions, and judicial dereliction of duty have shown that judicial self-management has resulted only in corruption and decadence.

Judge Yang Bing-long's rulings were often penned by his assistant. His office often stood empty. His status as an antiques expert nearly eclipsed his status as a judge. A High Court judgeship is not a sinecure. That Judge Yang could live the way he did, testifies to the failure of judicial oversight.

High Court Judge Kao Yu-shun came forward as a whistleblower. He blew the whistle on Supreme Court Judge Hsiao Ying-kui, who tried to influence the outcome of his son's hit and run case. When a judge's son becomes a defendant, why can his father intercede on his behalf? Why can a trial judge get away with doing favors for friends? Why are judges concerned about offending their colleagues? Why do judges "look after their own?" Why do judges go along and engage in legal sophistry? Why are judges unafraid of the "court of public opinion," but afraid of the ostensibly impartial justice system? Trial judges unthinkingly exchange the public good for personal interest. They undermine public confidence in the justice system by doing it system harm.

Judges luxuriate in judicial independence. But they have failed to demonstrate self-responsibility or self-respect. Therefore a judge's assistant can suddenly become a judge, He can suddenly become the prime mover behind a judicial ruling. Yet the court carries on as if nothing is wrong. A judge can bungle a case. He can commit glaring errors. But as long he does not engage in corruption or accept bribes, the courts look the other way.

When judges are assigned cases, judges with seniority are assigned civil cases, whereas judges with less experience are forced to preside over complex criminal cases. A new batch of "10,000 year judges" has settled in, and judges are assigned on the basis of seniority rather than ability. Judicial self discipline has gone out the window. But the Personnel Review Commission frets more about the rights of judges than their obligations. It worries more about judges than defendants. So-called "judicial independence" has evaporated. These are signs of degeneration. But judicial authorities merely turn a blind eye.

The credibility of the justice system has been severely damaged. It cannot withstand any more blows to its reputation. Fifteen years ago, judges spoke out. They asked everyone to believe them when they said they would manage themselves. The results have proven otherwise. The fact is, judicial independence is only possible with judicial self-respect. If judges lack self-respect, so-called judicial independence will merely provide unscrupulous people with more room to maneuver.

The Cheng Chi Project is courageously trying to clean house. Judges can begin freeing themselves from systemic peer pressure. This is a sign of judicial self-awareness. It is an opportunity for judges to prove themselves to outsiders. Will this opportunity lead to a renewal? That depends on the judges, on whether they follow through on what they have begun.

Judges must set ethical standards for themselves. They must demand moral rectitude and right conduct. They must institute rigorous oversight. They must not permit influence peddling to insinuate itself into the system. They must impose self-discipline. They must distinguish between right and wrong. They must not discriminate between high and low. Special laws for the impeachment of judges have yet to be passed. Until they are, the Civil Service Disciplinary Committee must play a disciplinary role and eliminate unfit judges.

People have yet to regain their faith in judicial self-management. Until they do, executive and other forms of oversight must be restored. Judges must be assigned cases based on the requirements of the trial in question. Long delayed cases must go forward. A review mechanism must be established. Indolent and corrupt judges must be removed from office. External oversight of individual cases must be provided. This will help judges resume their duties as trial judges.

The justice system is in trouble. If Acting President Hsieh Chai-chuan's only goal is to hold the line, he will forsake a rare opportunity for reform. Fifteen years ago, as fate would have it, Hsieh was President of the Taichung District Court. He was unable to deal with the judge who refused to submit to prior approval. This set off a wave of reform. One might say that Hsieh was and is a victim of fate.

Is he a victim of fate? Is this historical irony? The justice system is in decline. We must remind judges that 15 years ago, the public sided with the judges when they demanded the elimination of executive interference. The public yearned for a professional and independent trial system. But if judges become indolent, judicial self-managemtn will degenerate. The trial system will cease functioning, and public trust will be lost.

President Ma Ying-jeou must swiftly appoint a new Judicial Yuan President, one who understands the lesson of history. The new Judicial Yuan President must boldly eliminate the defects within the system. He must help judges reestablish self-discipline and self-management. He must oversee the system. Only then can judges once again hold their heads up high and proudly proclaim, "I am a judge."

「法官自治」必須「法官自律」
【聯合報╱社論】
2010.08.17 01:45 am

司法院將三名涉及關說、行為失檢的法官停職，移送監察院追究責任，期以挽救急墜的司法聲譽。司法近來如得瘟疫，百病齊發，究其病根，都指向「法官自治」的功能淪喪，甚至動搖了審判獨立。顯然，司法改革已到了必須重新思考調整方向的關鍵期。

民國八十四年，台中地方法院法官發起拒絕判決書送閱運動，自此判決無須經過首長審閱即能出門，司法行政權徹底退出了對審判權的干涉。爾後，法官更進一步爭取在人事、事務分配上的各項權力，在「審判獨立」的大纛下，法官自治躍進，行政監督急退。

然而，十五年後的今天，法官接連的失德、失格、失職表現，不啻將法官實施自治後累積的陳腐敗壞，逐一揭露。

法官楊炳禎長期由法官助理代筆判決，辦公室常不見人影，他的「古董專家」的名號幾乎蓋過他的法官身分；高院法官並非輕鬆的工作，楊竟可如此悠遊，想見監督機制全部失靈。

高等法院法官高玉舜挺身擔任「吹哨者」，舉發最高法院法官蕭仰歸為兒子的肇事逃逸案關說。為什麼法官兒子涉案成為被告，就能有父親為他說項的機會，為什麼審判可以任由法官償還好友恩情，為什麼法官擔心得罪同僚，多淪為官官相護的鄉愿，寧悶頭在關說證據裡咬文嚼字，卻不害怕「社會法庭」不信任司法的公正？法官不自覺地把審判易公為私，儼然形成體系性戕害司法公信的暴力。

顯然，法官享盡了獨立審判、法官自治之利，但未善盡呵護自重的責任。因之，當法官助理變身地下法官，成為撰寫判決的主力，法院竟屬常態；當法官辦案品質差，錯誤明顯，只要沒被抓到貪汙拿錢，法院也便裝聾作啞。

當法官分配審判事務，資深的往民事庭跑，資淺的被迫辦理繁重的刑事案件；當新一批的萬年庭長成為氣候、審判長依年資而不論優劣出線；當法官自律的「神經失調」，人事審議會議關心法官權利多於義務，關心自己甚於審判民眾時，「法官自治」幾近解體。凡此種種向下沉淪的現象，司法當局竟都視若無睹。

司法審判的公信力極其脆弱，禁不起摧殘。十五年前法官們大聲疾呼，要大家相信他們可以完全管理自己，結果證明並非如此。其實，「審判獨立」須以法官的人格自重為前提，若不能人格自重，獨立就可能成了不肖者上下其手的空間。

「正己專案」勇於清理門戶，法官開始可以擺脫系統裡惡質同僚的壓力，是司法界自我覺醒、向外界證明的契機；但能否化為轉機，獲致新生，要看法官後續的表現。

法官應該訂立法官倫理規範，嚴格要求品性端正、行為合宜；應該惕勵監督，不容關說等審判以外的力量滲透；應該深化自律，區辨優劣，不以期別論高低；在法官淘汰特別規定未完成立法前，由法官組成的公務員懲戒委員應可積極發揮懲戒、淘汰的功能。

在法官自治重新獲得人民信賴前，行政及外力的監督恐需適度回復，以訴訟的實際需要為準而分派審判事務，強化對遲延案件的管控，建立確定判決的審查機制，踢走打混擺爛營私者，也加入外部對個案或全面性的評鑑監督，協助法官回到以審判為本的職責。

司法界現值多事之秋，代理院長謝在全若只抱持看守心態度日，便可能錯失大好的改革良機。巧的是，十五年前謝正是台中地方法院院長，無力招架法官拒絕送閱掀起的改革風潮，可謂造化弄人。

是造化弄人也罷，是歷史反諷也罷，司法沉淪的現狀，卻也在提醒法官，十五年前，社會支持法官起而推翻行政的干預，要的就是專業而獨立的審判；法官一旦因循怠惰，自治權就會變質，也無法產生優質的審判文化及可使社會信服的領導人才。

馬英九總統必須儘速擇定新的司法院長，新的院長必須看清歷史發出的訊息，大刀闊斧除弊，協助法官重新自律自治，輔以制度監督；唯有如此，法官才能抬頭挺胸地大聲說，我是法官。