Judicial Reform Must Be Rooted in Public Aspirations

Judicial Reform Must Be Rooted in Public Aspirations
China Times editorial (Taipei, Taiwan, ROC)
A Translation
October 8, 2010

For the past several days, the Legislative Yuan has been interpolating the President and Vice President of the Judicial Yuan. Judicial reform has again become a matter of concern. The two nominees are Lai Hao-min and Su Yung-ching. Private sector legal reform organizations have characterized the two nominees as "incompetent" and "very incompetent." They say the nominees have never spoken up for human rights or taken a clear stand, while in academia or in politics. Either that, or they have taken a much too clear stand, in opposition to the conclusions of the National Judicial Reform Convention 11 years ago. The public may have high expectations regarding judicial reform. But does that mean those in charge of the Judical Yuan should be radicals? We should think twice. Inaction is not necessarily conservatism. The important thing is to find a pragmatic middle ground between progressivism and conservatism. Only then do we stand a chance of gradually achieving our goal of judicial reform.

The road to judicial reform has been a long one. Eleven years ago, the National Judicial Reform Convention convened. Just before that, the Ministry of Justice Hsiao Tien-chan influence-peddling scandal exploded. Hsiao was forced to step down. Then KMT Secretary-General Hsu Shui-teh boasted that "The KMT runs the court system." His remarks were explained away as a misunderstanding, But they still generated considerable controversy. As a result, former President Lee Teng-hui merely addressed the convention, but did not preside over it.

As one can imagine if a president fails to personally preside over a convention, he cannot possibly receive the full support of the executive branch. Even members of the Legislative Yuan expressed strong disagreement. As a result, the amendment process dragged on without success. Also, only 15 community leaders attended the convention. The convention was criticized as lacking public participation. Judicial reform includes institutional reform and organizational reform. But the key is the restoration of public confidence in the justice system, This was given scant attention in the hundred or so conclusions reached by the convention. As a result, the convention received little public support.

Eleven years later, most people have no recollection of what judicial reform convention members proposed. When people hear the words "judicial reform," the most common response is "It's meaningless!" The trial process takes too long. The justice they demand never prevails. Even a straightforward case in which a young girl has been raped, the judges act like legal hacks. They let the offenders off with a wrist slap. High Court judges are even guilty of accepting bribes. These are all problems the National Judicial Reform Convention are incapable of solving.

Eleven years later, judicial reform is still spinning its wheels. Why? Former Minister of Justice Lai In-jaw once used "two pyramids" to describe the conclusions of the judicial reform convention. He said bluntly that in the short term, real reforms were unlikely.

Is judicial reform really that difficult? The judicial reform convention arrived at two main conclusions. The first pyramid was to reorganize the Judicial Yuan, and abolish the three courts of final appeal. Beginning in January 2012, the Supreme Court the Supreme Administrative Court, and the Civil Service Judicial Disciplinary Committee, would all be merged into the Judicial Yuan. Fifteen judges would be placed in overall charge of all civil, criminal, administrative, civil service disciplinary, and constitutional interpretation cases. This huge project was to be implemented in three stages over 11 years, and include amending the laws governing organizations. The bill was submitted repeatedly, but the Legislative Yuan repeatedly refused to give it a third reading. The amendment never passed.

The Legislative Yuan is not necessarily being unreasonable if it disagrees with a bill. First, the current caseload is huge. Every year, nearly 19,000 appeals are submitted to the Supreme Court. No matter how good the 15 judges might be, they cannot possibly deal with them all. Secondly, suppose a high threshold is established for a third instance appeal? Suppose the public is asked to swallow its grievances, and accept being limited to a second instance appeal? As soon as the Legislative Yuan completed its third reading, legislators' phones would be ringing off their hooks.

Therefore, judicial reform can begin only by reforming the litigation system pyramid. In fact, the reorganization of Judicial Yuan can only be implemented after litigation system reform. Each year nearly 19,000 appeals are submitted to the US Supreme Court. The number is alarming. But the US Supreme Court has sufficient discretionary authority. It can reject an appeal without even offering reasons why. Each year an average of 70 to 80 cases are heard. Nine judges are sufficient to handle such a case load. If the same case were applied on Taiwan, who on Taiwan would tolerate 15 judges dismissing their appeal without offering a reason? Does any judge on Taiwan have the guts to dismiss 18,000 to 19,000 appeals a year?

This is the background behind the speedy trial bill. It was finally passed this year. It was applied to only two cases. The majority of cases were tried by District Courts and the High Courts. The Supreme Court retried the cases again and again. The conditions remained unfavorable. The high ideals of 11 years ago were destined to remain unfulfilled. Weng Yueh-sheng could not succeed. Lai Ying-chao could not succeed. Isn't demanding that Lai Hao-ming succeed putting him on the spot?

The road to judicial reform is a long one, and even more fraught with obstacles than the road to educational reform. What is the role of the Judicial Yuan? That for most people is not the issue. For most people the issue is the ensuring of justice, honest and fair judges, a swift and effective trial process, concern for human rights, and compassion for crime victims. Let judges descend from the clouds. Let them feel the pain felt by those caught in wheels of the legal machine. Demand that their rulings be consistent not only with the law, but with common sense and common decency. That is the simplest way to begin judicial reform. Such a reform process is not the responsibility of the President and Vice President of the Judicial Yuan, It is the responsibility of every prosecutor and every judge.

司改應從庶民的期待著手
2010-10-08
中國時報

立法院連日來為司法院正副院長同意權進行答詢審查，司改議題再次受到關注。民間司改團體並以此界定兩位被提名人賴浩敏與蘇永欽，分別為「不適任」及「非常不適任」，理由是他們過去不論在學界或政界，主張要不是不明確，從未為人權發聲，要不就是立場太清楚，反對十一年前全國司改會議的結論。儘管民意對司改殷盼之情日切，但司法院主事者宜否激進？仍須三思。保守不必然無為，在進步與保守間，重要的是找到務實的道路，才有機會讓司法改革漸次達成目標。

台灣司改之路行之已久，十一年前召開的全國司改會議，或許因為在此之前發生過法務部蕭天讚關說事件，蕭因此辭官下台；還發生過國民黨秘書長許水德一句「法院是國民黨開的」，雖然事後解釋是烏龍一場，但仍釀成巨大爭議；因此，前總統李登輝僅到場致詞，並未主持會議。

可想而知，一個總統並未親臨主持的會議，不可能得到行政機關的全面支持，甚至立法院都有強大的不同見解，因而配套修法漫長無功。除此之外，與會的社會賢達只有十五人，當時即被批評為是一場缺乏人民參與的會議，司法改革包括制度、組織，但最重要的核心應該是有效解決人民對司法正義無從信賴的痛感，這一點，在當年洋洋灑灑一百多項結論中，著墨不多，因而得不到民意的強烈支持。

事隔十一年，多數民眾腦袋裡，根本不記得司法檢審要員們主張過什麼？談起司法，民眾最多的反應是，「嘸效啦！」判決過程一樣這麼久；胸中委曲依舊無從伸張；連最簡單的女童性侵案，法官依舊只是法匠，從輕發落；甚至高院法官收受賄賂者依舊所在多有…，凡此種種，都不是司改會議能解決的。

十一年，司改形同原地踏步，何以致此？前司法院長賴英照，曾簡要地以「兩個金字塔」，描述當年司改會議的結論，他誠實以告：短期內落實確有困難。

司改有這麼難嗎？照司改會議結論的兩大重點，第一個金字塔是司法院組織重新定位，取消三終審，照時程民國一百年元月開始，最高法院、最高行政法院、公務員懲戒委員會全部併入司法院，改由十五位司法官綜理所有民、刑事、行政訴訟審判、公務員懲戒及憲法解釋。這個巨大的工程必須在過去十一年間分三階段逐步達成，包括相關組織的修法，結果是法案一送再送，立法院就是不三讀，全部沒修成！

立法院不同意，亦非全然無理，第一，以目前案件數量而言，每年有一萬八、九千案件上訴到最高法院，十五位大法官再有本領，都不可能完成這個不可能的任務。第二，以台灣的民情，若真設定嚴格的上訴三審門檻，要求民眾接受自己的冤屈只能上訴到二審，立法院只要三讀通過，立委服務處的電話肯定先被打爆。

因此，司改只能從訴訟制度的金字塔做起。事實上，改變司法院定位，也只能在訴訟制度變革後才有機會落實。美國聯邦高等法院判決後案件，每年約有八千到九千件上訴到聯邦最高法院，數量也很驚人，但聯邦最高法院有充分的選案權，甚至不附理由即可駁回，每年受理裁判案件平均七、八十件，九位大法官足堪負荷。相同的例子換到台灣，哪個民眾能接受十五位大法官不附理由就駁回其上訴？哪位大法官有這個肩膀一年駁回一萬八、九千的上訴案件？

速審法就是在這樣的背景下推動的司改法案，今年才通過，適用案件僅兩案，多數訴訟依例在地院、高院、最高院間來來回回更審再更審。現實條件的不可行，註定十一年前理想性甚高的司改結論難於落實，翁岳生做不到、賴英照做不到、要求賴浩敏做到，豈不強人所難？

司法改革長路漫漫，其難度更高過教改。對絕大多數國人而言，司法院到底如何定位，並非其關切的重點，民眾要求的是司法正義得以彰顯，法官廉潔而公正，判決有效且迅速，照顧人權，更要照顧被害人的權益，讓法官步下雲端，體會不得已打官司的民眾之痛，要求自己每一個判決合乎法，還要合乎人情義理，其實就是司改最簡單的一步，這樣的改革，不是司法院正副院長之責，而是每一位檢察官、法官肩上的唯一重擔。