Judges Law: Assurances and Expectations

Judges Law: Assurances and Expectations
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
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.

法官法的保障與期許
【聯合報╱社論】 2011.06.16

千萬難。經過近廿四年光陰，法官法終於得見天日，完成立法；如果是酒，也是超級ＸＯ了。

廿四年歲月，法官法草案歷經社會變遷，不同種價值的取捨、拉鋸，遂成今日的面貌。法官有別一般公務員的地位正式確立，但因自我監督及裁判品質受到高度疑慮，面臨了外部人員入侵檢視的嚴厲挑戰。

法官法立法之舉，初見於民國七十六、七年間，希望藉由法官法，使法官的職等、俸給與公務員分離，彰顯司法權的獨立性。此法草擬之際，台灣剛解嚴，政黨競爭初萌芽，法官試圖從強大的行政權中掙脫；草案中爭議最烈者，首屬法官參與政黨的份際，及法官自主決定事務，與法官會議的權限等。

隨著政黨政治、法官審判獨立空間的成熟，法官與政黨、司法行政與審判之間的互動尺度，受到的關切漸少。但外在干預消失，法官自律的功能卻遲遲未現，外界開始要求裁判的效率、品質，以及最基本的清廉。建立有外部人員參與的評鑑法官機制之訴求，堂皇現身。於是，相應的職務法庭，在法官的憂患意識下推出。職務法庭，把法官懲戒從公務員懲戒事項中獨立出來，與其他的監督、任免、調動事由，一併交給由法官組成的法庭審理，主要也在彰顯法官的獨立性。

法官極力維護獨立，裁判表現卻無法撐起社會公義的一片天。無論是法官不列職等、薪俸自成體系，或由專屬的職務法庭處理犯錯的法官，行政院、考試院、監察院都不肯爽快點頭同意。法官非但推不開性質並不完全相同的檢察官「棲身」法官法，更因表現未盡人意，致法官評鑑事由範圍擴大，連參與評鑑外部人員的選拔，立監院都要插手。甚至法官人事審議委員會都要變革，這個曾是基層法官對抗長官高權，展現由下而上改革力量的戰場，都須敞開大門讓外部委員加入，與聞、監督法官的考核、調動等事務。

說來也著實是諷刺。在法官集體貪瀆、性侵案件適法性、量刑高低頻出包，社會威逼不肖、恐龍法官退場的壓力下，幾度闖關失敗的法官法，反得新生。

法官法初登場，確立了法官獨立身份的俸給、職務法庭齊備，並有較目前優渥的退養規定，可見社會仍然願意尊重司法，給與法官迥異於一般公務員的特別保障。相對的，法官基本的操守、自我治理、提高裁判品質的能力都受到嚴厲檢驗。對法官評鑑規範的要求，一度進逼到法律見解，觸及法官審判獨立界限，法官備感壓力，且該汗顏。試想，法官若能自律，司法行政監督得以有效迅速發揮，自行處分體系裡的莠類，外部評鑑根本無用武之地，何需為了哪些人可以聲請評鑑、哪些人足任評鑑委員，哪些事項應付評鑑，人審會有無外部委員加入影響獨立性而吵翻天？

評鑑過程冗長，縱或評鑑成立，將有違失行為的法官送交職務法庭；然職務法庭能否樹立較現行公懲會更足服眾，懲處、淘汰不適任法官的的標準，讓社會感受到法官嚴格律己的改變，恐仍猶待實例驗證。

法官法開啟的另一扇門，是法官多元晉用管道，律師、學者有更多機會進入審判體系，鬆動日益僵化的審判思維。審判不應是制式判決的法匠操觚，經由學術及實務的多重激盪，希望能讓審判多些人味，更貼近人民。

法官法無法解決近來司法公信盪於谷底的所有問題，但朝野在法案起草廿多年後攜手完成立法，至少代表大家皆有司法要更好的共同期待。法官應該珍惜這樣的託付，莫放棄加入司法正義行列的美好初衷，在法官法確立的獨立空間裡，遵守法官倫理規範，與政黨保持距離，遠離金錢誘惑，避免重大違失影響人民權益，不遲延，不濫權，精進法律見解，善盡專業，守護正義。

法官法雖然通過，民間睜大眼睛，等著加碼監督的力量卻不會停歇；法官享有特別薪給退休、懲戒程序，獨立審判權利的背後，也有特別的責任。走過廿四年長程才誕生的法官法，是保障法，也是淘汰法，法官惟有不獨大，不張狂，才能保有真正的獨立。