Judges Law: Assurances and Expectations
United Daily News editorial (Taipei, Taiwan, ROC)
June 16, 2011
After much hardship and nearly 24 years time, the Judges Law is finally seeing the light of day. It has been passed by the legislature. If it were brandy, it would be "XO," or Vieille Reserve.
Over 24 years, the draft bill for the Judges Law was witness to many social changes. Different values led to trade-offs and tug of wars, and finally to today's result. Judges enjoy a status not accorded most civil servants. But their impartiality and their ability to monitor themselves have been called into question. They now face harsh outside scrutiny.
The Judges Law has made it through the legislature. It first appeared in 1987, 1988. We hope the Judges Law will define the status of judges, segregating them from ordinary civil servants, and underscoring the independence of judicial authority. The law was drafted just as martial law was being lifted. Party politics was still in its embryonic stage. Judges were attempting to break free from a powerful executive. The most controversial aspect of the draft bill set limits on judges' participation in political parties, judges' authority to choose their own assignments, and the authority exercised by judge's councils.
Party politics and judicial independence have evolved. Judges and political parties interact with each other. Concerns about interaction between the administration of justice and the sentencing process have diminished. Outside interference has disappeared. But judges are still incapable of disciplining themselves. Observers have begun demanding efficiency, quality, and integrity. They have begun demanding a system of oversight for judges that includes outsiders. As a result, a system of oversight has been brought forth to discipline judges, drawn from the civil service. Discipline, appointments, and transfers will be turned over to this system of oversight, underscoring the judges' independence.
Judges are striving to maintain their independence. But they have failed to uphold social justice. Judges set themselves above others. They receive salaries far larger than others. When the system of oversight deals with judicial misconduct, the Executive Yuan, the Examination Yuan, and the Control Yuan will be reluctant to rubber stamp its findings. Judges cannot brush aside the dissimilar law that enables prosecutors to cover for judges. Unsatisfactory performance increases the need to oversee judges. The selection of outside personnel to oversee judges will require Control Yuan intervention. The Judicial Personnel Committee must be reformed. At one time lower level judges used this committee to resist pressure from higher level judges. They flexed their reformist muscles, from the bottom up. The doors must be thrown open. Outsiders must be permitted to participate, investigate, and oversee qualifying examinations and transfers for judges.
This is all rather ironic. Judges engaged in collective corruption. They handled sexual assault cases inappropriately. They handed down vastly differing sentences for the same crime. The public could no longer look on passively. Out of touch judges resigned under pressure. The Judges Law, which repeatedly failed to pass, received a new lease on life.
The birth of the Judges Law has affirmed the independent status of judges. It has established a system of oversight, and generous provisions for early retirement. As we can see, the public still respects the judiciary. It still grants them unique assurance not granted most civil servants. But their integrity, their right to discipline themselves, and their job proficiency will all be subject to close scrutiny. Demands that judges be subject to oversight, have resulted in legal opinions that threaten judicial independence. Judges feel pressured. They feel shame. If judges are to discipline themselves, oversight must be fast acting and effective. A system of self-discipline must be worked out. Otherwise outsider oversight will be futile. Who is qualified to be an outsider overseer? Which matters must be overseen? Will the Personnel Evaluation Committee include outsiders who will undermine its independence?
The oversight process will be time consuming. Once the oversight process is established, judges guilty of misconduct will be turned over to the system of oversight. Can the system of oversight exact punishments closer to public expectations? Can it eliminate unfit judges? Will the public believe that judicial self-discipline has led to change? That needs to be seen.
The Judges Law has thrown open a door. Judges, lawyers, and legal scholars will be recruited. They will acquire greater access to the court system. They will loosen up the rigid court system. Court verdicts must not be the product of legal hacks, painting by the numbers. Academic theory and practical application must come together. The court system must become more human, and closer to the people.
The Judges Law cannot solve all the problems undermining the credibility of the judicial system. But the ruling and opposition parties have successfully passed the bill, after twenty years of effort. We anticipate a brighter future for the justice system. Judges should be grateful for the trust the public has given them. They must join those seeking justice within the legal system. The Judges Law has established an independent judiciary. Judges must abide by judicial ethics. They must keep their distance from political parties. They must stay away from the lure of money. They must avoid violating people's rights. They must not procrastinate. They must not abuse their power. They must offer sophisticated legal opinions, fulfill their jobs in a professional manner, and serve as guardians of justice.
The Judges Law has been passed. The people have had their eyes opened. They await increased oversight. Judges enjoy special pay, special retirement benefits, and special disciplinary procedures. But their extraordinary independence implies extraordinary responsibilities. The Judges Law gestated for 24 years. It is a law meant to protect. It is also a law meant to eliminate. Judges must not exceed their brief. Only then can they maintain genuine independence.