Hsiao Yang-kui Should Have Retired Immediately

Hsiao Yang-kui Should Have Retired Immediately
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
August 16, 2011

Summary: Supreme Court Judge Hsiao Yang-kui's son was involved in hit and run accident. Hsiao was suspended for six months, then applied for reinstatement. At the urging of the Judicial Yuan, he was reinstated but also forced to retire. If a judge is found guilty of exerting undue influence, he may no longer preside over court cases. Society considers this necessary, and so it must be. Hsiao Yang-kui inititally sought reinstatement in order to return to his job. But he was forced into retirement by public pressure.

Full Text below:

Supreme Court Judge Hsiao Yang-kui's son was involved in hit and run accident. Hsiao was suspended for six months, then applied for reinstatement. At the urging of the Judicial Yuan, he was reinstated but also forced to retire. If a judge is found guilty of exerting undue influence, he may no longer preside over court cases. Society considers this necessary, and so it must be. Hsiao Yang-kui inititally sought reinstatement in order to return to his job. But he was forced into retirement by public pressure.

Undue influence undermines justice. For the credibility of the court system, it is lethal. Historically, only three categories of people have been able to influence the court system. They are those who wield political influence, those who wield administrative authority, and judges, prosecutors, and other court system insiders.

Take those who wield political influence. The most famous example occurred in 1994. Lin Ping-kun, a Member of the Legislature, was a suspect in the China Petroleum wastewater scandal. KMT Secretary-General Hsu Shui-teh telephoned the President of the Taipei District Court, Hu Chih-chung. He asked Hu to delay announcement of the verdict, and allow additional time for deliberation. He even joked that the courts were run by the KMT.

During the 1990s, Tainan District Court Judge Hsieh Shuo-jung, going strictly by the book, submitted the verdict for the Tainan County Nan Kunshen Dai Tianfu slander case to another judge for review. President Wang Hsing-jen then "communicated" with Hsieh Shuo-jung. Hsieh secretly recorded their conversation, including Wang's remark, "Why is the sentence so harsh?" Once the truth emerged, the public was outraged. The President of the Judicial Yuan transferred Wang to a court in another jurisdiction. The system by which other judges would review the verdict before it was announced was subsequently abolished.

As democracy matures, those able to exert political influence and wield administrative authority find themselves less able to influence the court system. Ironically, officials within the court system have come to consider the lobbying of court system officials as "no big deal." Hsiao Yang-kui exerted undue influence on behalf of his son. He remained on suspension until he qualified for reinstatement. From this we can see the implicit standards officials within the court system hold, and how remote their notion of justice is from that of the public.

Hsiao Yang-kui feared that his son, who was studying law, would end up with a criminal record, that he would be washed out during the oral examination stage. Hsiao exerted undue influence in the hope of obtaining a not guilty verdict. His efforts led to a first instance guilty verdict with a suspended sentence. But Hsiao was not satisfied. He made another attempt during the second instance trial. He was determined to get a not guilty verdict. Hsiao's conduct revealed his implicit attitudes. As Hsiao saw it, he was, after all, not guilty of corruption. What father wouldn't do everything in his power to protect his own child? What's wrong with Hsiao putting in a good word for his son? Judges who exerted undue influence in the past received a slap on the wrist. Others who exerted undue influence received nothing more than a demerit. So what if Hsiao was forced to retire. He was disciplined for exerting undue influence on behalf of his son, nothing more.

These are the implicit attitudes of officials within judicial circles. Their attitudes are utterly incomprehensible to those outside judicial circles. Hsiao is implicitly inculcating such attitudes in his own son. He is characterizing the exertion of undue influence as "removing obstacles." He has put his selfish interests above the interests of justice. He has set the worst possible example. Whether a judge is corrupt is hardly the standard by which judicial conduct should be evaluated. Not being corrupt hardly merits a medal. Not being corrupt does not confer the right to grant special treatment to other court system insiders. A Supreme Court judgeship is a high honor and a weighty responsibility. How can we allow it to become synonymous with the exertion of undue influence in first and second instance court cases?

In the past, the punishment for undue influence was a slap on the wrist. But that was then. This is now. Today that cannot be our standard of reference. The exertion of undue influence constitues a fundamental perversion of justice. Judges who have knowingly exerted undue influence, must step down. There is nothing more to discuss. Even political parties and executive branch officials may not exert undue influence on the court system. How can judges be permitted to cite personal relationships as a justification for undue influence and backroom deals?

What defendant is not someone's son or daughter? Most people count themselves lucky if they can find a competent lawyer, and have their case adjudicated by a fair-minded judge. Officials within the court system cover up for their fellows, yet act as if they have done nothing wrong. What kind of attitude is that?

Hsiao Yang-kui had the temerity to thumb his nose at the public, and to ignore the law. He dared to do so because the civil service disciplinary committee merely imposed a six month suspension, before reinstating him as a judge. Fellow judges, particularly judges his age, overtly or covertly covered up for him. They argued that undue influence exerted on behalf of one's own child did not warrant a major demerit. This enabled Hsiao to evince utter contempt for public sentiment.

This climate of hypocrisy dulled their sense of the evil of undue influence. It diminished court system officials' sense of shame. It frittered away the victories won by court system officials along the way. These court system officials rid the court system of undue influence exerted by those with political influence and administrative authority, only to have the court system become the private instrument of decadent judges. These decadent judges trample over the Judges Law, whose purpose is to safeguard judicial independence. The Judges Law, which liberated judges from the constraints of the civil service system, now enables them to cover up each others' crimes.

When the Supreme Court addressed the Hsiao Yang-kui undue influence case, it cited an ancient proverb, to rally public sentiment. It urged the public not to "yield to human passions, give free reign to joy and anger, indulge in cronyism, fear bold and heroic gestures, feel anxiety about disasters." It urged the public to unite to establish a system of justice worthy of emulation. It said that such a system would not happen by itself. It would have to be created incrementally, through case law, and that reinstating Hsiao Yang-kui would be the ideal beginning.

A Supreme Court judge decided to exert undue influence. It matter not for whom it was done. It was a perversion of justice. If the court system wants public respect, judges must be impartial guardians of justice. No one may be permitted to exert undue influence on the court system. If Hsiao Yang-kui cannot abide by the law, if his fellow judges persist in covering for him, then the entire system has degenerated. In which case, how can anyone still believe in it? The courts must not be operated by political parties. Nor can the courts become judges' private fiefdom. Judges must never forget that the source of their judical authority is the public. There is no room for private interests.

蕭仰歸惜未在第一時間申請退休
【聯合報╱社論】 2011.08.16

最高法院法官蕭仰歸為兒子的肇事逃逸案關說，休職半年期滿依法申請復職，在司法院極力勸說下，終於以復職同時退休收場。法官關說，就該離開審判工作的社會通念價值，於焉實現；可惜的是，蕭仰歸的原意在復職續任，退休則是出於輿論壓力。

關說，是破壞公平、司法公信的殺手。歷來可以輕易穿透司法的關說，不外乎三大力量，政治力關說、行政力關說，以及法官、檢察官等自己人的關說。

政治力關說，最有名的是八十三年間，國民黨秘書長許水德為涉入中油廢水弊案的立委林炳坤，打電話給台北地方法院院長胡致中，希望案子不要馬上宣判，能再開辯論，以致法院被譏為是國民黨開的。

也是八十年間，台南地方法院法官謝說容，依規定在宣判前將台南縣南鯤鯓代天府謗誹糾紛案判決書送閱，院長王興仁即找謝法官「溝通」，謝偷偷錄音，錄到王說「怎麼判這麼重」；此事爆出後，社會譁然。司法院後來將王調到其他法院，候補法官事前送閱判決書的制度更因此廢止。

隨著民主政治的成熟，政黨關說、行政關說勢力不再；但奇怪的是，司法界自己人的關說，反而被司法人認為「沒什麼」。從蕭仰歸為子關說案發生、休職到申請復職過程，就可看出司法界所呈現的「潛價值」，與民間實為天差地別。

蕭仰歸是因擔心學法的兒子留下前科，將來在口試中被刷掉，乃以關說「拚無罪」，關說完一審，有罪但得緩刑，猶不滿意，再試二審，非達無罪目的不可。支撐蕭的「潛價值」包括：蕭又沒有貪瀆，哪個父親不護子，蕭為兒子說一下情，有什麼關係；過去司法官關說，罰得都不重，為別人關說，都只記過，蕭為兒子受休職懲戒，足矣。

這些司法圈內的潛價值，實難見容於司法圈外：蕭不啻為教育兒子以關說「清除障礙」，將個人的前途價值，凌駕於司法公義之上，作了最壞的示範。其實，不貪瀆是法官應備的基本操守，並非榮譽勳章或「圖利」自己人的免死金牌；最高法院法官的名銜隆重，怎可輕賤成為個案穿梭一、二審的招牌？

對於關說，過去罰得輕，有時代背景之故，不應作為如今處罰的參考值。關說的行為破壞了司法公正的基本面，法官明知故犯，理應退場，無可商量。連政黨、行政力都不能關說司法，憑什麼法官獨可以人情為藉口，進行暗室交易？

更何況，哪一個被告不是父母親的子女；一般人能夠找到好律師，拜拜祈求遇到好法官，就算福氣；司法人幫司法人拚無罪，卻理直氣壯，這是那門子的「福利」？

蕭仰歸膽敢無憚社會觀感，恃法而行，因先有公務員懲戒委員會僅處以休職，給蕭復職之權，後有同儕法官，尤其是同齡法官或明或暗的相挺。為子關說非大過的鄉愿人情，讓蕭可以無視外界指責的風雨。

但也正是此種鄉愿氣候，弱化了關說之惡，削去司法人的恥感，更糟蹋了司法一路以來，好不容易才擺脫政治力、行政力的成果，致司法淪為法官相護的私人工具，踐踏「法官法」為維護審判獨立，將法官抽離於公務員系統之外的用心。

最高法院處理蕭仰歸關說案時，曾引古訓勉勵大家，不要「徇人情、任喜怒、黨親昵、畏豪雄、顧禍害」，共同形塑更理想的司法典範。典範不會自然生成，必須從個案實踐累積，那麼，蕭仰歸復職案就是最好的開始。

最高法院法官從起心動念到進行關說，無論為誰，都已褻瀆司法。司法要讓人瞧得起，法官必須戒慎恐懼地共同守護公正的信念，誰都不能關說。如果蕭仰歸做不到，同儕法官還要呵護容忍，形同集體淪落，則誰還敢相信司法？法院不是政黨開的，當然也不是法官可以妄自據地為王的自家大院；法官別忘了審判權力的源泉是來自公眾的託付，絕對沒有私用的空間。