Supreme Hopes for the Supreme Court

Supreme Hopes for the Supreme Court
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
February 16, 2012

Summary: Never before has the appointment of a Chief Justice of the Supreme Court drawn so much attention. Calls for reform have been arriving, wave upon wave, from lower downs at higher ups, and from outsiders at insiders. Yang Ting-chang is now the new Chief Justice of the Supreme Court. He is riding the crest of these waves. He cannot avoid them. All he can do is ride them in the directin they are going. All he can do is lead the realm of jurisprudence through its crisis of confidence.

Full Text below:

Never before has the appointment of a Chief Justice of the Supreme Court drawn so much attention. Calls for reform have been arriving, wave upon wave, from lower downs at higher ups, and from outsiders at insiders. Yang Ting-chang is now the new Chief Justice of the Supreme Court. He is riding the crest of these waves. He cannot avoid them. All he can do is ride them in the directin they are going. All he can do is lead the realm of jurisprudence through its crisis of confidence.

Yang has attracted considerable attention. The reason is the reactionary nature of the system. In early January, a lower court judge circulated a petition that was eventually signed by over 500 judges. They expressed their hopes for the Supreme Court appointment. They expressed a desire to meet with President Ma once he won re-election. They recommended the establishment of an evaluation process. They offered numerous suggestions for reforming the Supreme Court.

This is the first time in our legal history that judges have expressed a collective opinion about Supreme Court nominees. The petition expressing the judges' hopes was not a sudden move. It was a continuation of wave upon wave of quiet revolution. At one time, judges said, "We will give you back the ballot box, if you give us back our independence." Judges wanted to repeal the requirement that court judgments be subjected to advance review. Judges flexed their administrative muscle, and won judicial independence. Judges appealed to the National Assembly on Yangmingshan, and gained fiscal independence, even whiled retaining judicial independence. Today's movement is directed inward. Its goal is to establish a more refined trial process able to inspire public confidence.

On the surface this movement, begun by lower court judges, constitutes a severe censure of the Supreme Court justices. Actually, it is an example of "tough love." In recent years the judicial system has undergone dramatic changes. The Supreme Court has habitually remanded cases back to the trial courts for further consideration. Its judgments have run counter to society's values. It has been tardy in reaching judgments. The facts of cases are often the same, yet the court's conclusions are often up poles apart. The controversy provoked by the White Rose Movement, which called for reasonable laws and sentences that fit the crime, enabled "dinosaur judges" (judges slow to react to injustice) to make a travesty of justice.

Given these dramatic changes, the justice system must change. The Supreme Court is the court of last appeal. It seals the fate of both defendants and plaintiffs. Logically speaking, judges ought to lead reforms. They ought to prevent trivialities from muddying the waters. They ought to focus on the legal opinions. They ought to be diliegent in resolving conflicts. They ought be courageous enough assume responsibility for their judgments. They ought to serve as examples for the lower courts. They ought to limit contention and discourage conflict. They ought to establish a system that inspires public trust.

The lower courts eagerly look forward to Supreme Court reform. The percentage of cases remanded back to the lower courts has substantially diminished. But members of the Supreme Court seldom provide legal guidance, seldom resolve discrepancies in their legal rulings, and seldom demonstrate initiative. Appointments to the Supreme Court are even more disastrous. They are made strictly on the basis of cronyism and seniority. Who decides which judges will be transferred to the Supreme Court? The views of the Supreme Court Chief Justice count for more than the views of the President of the Judicial Yuan. Becoming a Chief Justice requires only seniority. One's rulings are irrelevant. When the time comes, the position is guaranteed. One has no term limits. One can squat in office until one chooses to retire.

The Supreme Court should seek change under stable conditions. But stability is no excuse to delay reform. Waiting to be made Chief Justice hinders the rise of talent. It results in a race to the bottom. How can it motivate judges of superior merit? These are the reasons lower court judges have lost all patience.

Before the petition was circulated, lower court judges tried to break these bad habits. They refused to accept candidates nominated by Supreme Court judges. They began evaluating judges on the basis of their character, and on the basis of their rulings. They proposed standards for the evaluation of judges, in order to transform the Supreme Court. They tracked the schedule for Supreme Court Chief Justice appointments, in order to dialogue with the president, and so they could better explain the issue to the general public. The easiest reform easiest was the repeal of the "secret case assignment" system. This would shake the Supreme Court to its foundations, This would give the Chief Justice of the Supreme Court a dose of "shock and awe."

As one can imagine, when the president agreed to the petitioning judges' demands, the Supreme Court justices were thoroughly embarrassed. When lower court judges lent their expertise to exposing the Supreme Court's warts, the Supreme Court found it impossible to refute their charges. The reform movement was a direct attack on the Supreme Court. But if it were to degenerate into mutual recrimination between the lower and higher courts, then it would merely undermine the justice system. But if the lower and higher courts can stand united, and engage in constructive dialogue. they can accelerate the pace of reform.

Amidst this turmoil, Yang Ting-chang was appointed Chief Justice of the Supreme Court. He faces no small challenge. He must build a bridge between the lower and higher courts. He must transform accusations into dialogue. He must convert other insiders. He must exploit the momentum provided by lower court judges, to jumpstart the Supreme Court appointments, and reform the court system.

The court system exists to solve peoples' problems. It must not become a bastion of professional arrogance. Judges must not become kings comfortably ensconced within their realms. The language of court decisions is often incomprehensible. Defendants often waste years of their lives awaiting court decisions. The trial process is so ossified judges write judgments for each other. How can the public believe in such a system of justice? The key to the question is in the hands of the Supreme Court. As long as the Supreme Court has the necessary determination, it can lead the lower courts toward qualitative change. All of this is possible.

The trial process cannot be changed overnight. But we must make a start. Once we do, a butterfly effect will soon take place. This is an ideal time to transform the trial process. We hope the new President of Judicial Yuan can ride the wave forward, and make a fresh start.

對最高法院的高度期許
【聯合報╱社論】 2012.02.16

從來沒有一位最高法院院長的產生，如此次受到矚目。面對由下而上，由外而內，呼喊改革的聲浪，站在浪頭上的新任最高法院院長楊鼎章無法迴避，只能乘浪前進，帶領審判界勇渡內外紛至的信任危機。

楊受到矚目，起因於體系內的反動。就在一月初，由一審法官發動，五百多名法官加入連署，表達能由法官票選、慎選最高法院院長的訴求，並於馬總統贏得連任後爭取會面，提出建立審薦程序，改革最高法院的多項建言。

這是司法史上首次由法官對終審的院長人選展現集體主張，這波連署法官們的參與期待，並非突發之舉，而是一波波寧靜革命的延續。過去的「箱子還你，獨立還我」，廢除判決書事前送閱的運動，法官向司法行政權爭取審判獨立；法官上陽明山向國大代表爭取司法預算獨立，也在護衛審判獨立；如今的運動，轉向內求，目標是建立精緻而服眾的審判文化。

基層法官的運動，表面上是對老大哥的嚴厲責難，實為愛深責切的期許。近幾年來，司法外部環境產生鉅大變化，最高法院長久以來的發回文化、歧異文化，致案件久久定讞、案情相近卻可能命運不同，以及「白玫瑰運動」挑起的法律適用，量刑妥適性爭議，讓審判受困於恐龍法官的牢籠，無法翻身。

值此巨變，審判界不能不變。最高法院既是判決定讞的落槌處，當事人的生死輸贏由其定奪，理應為法官界的翹楚，引領興革，減少瑣細事項的糾纏，著力法理見解的論述，勤於歧見的整合，勇於自為判決負責，作為下級審的表率，建立定紛止爭，受人民信賴的審判文化。

下級審引頸期盼，最高法院的改變蹣跚。案件發回率雖大幅降低，但發人省思的法理指引仍少，歧異見解的解決，猶缺積極的努力。人事上更見圈圈文化、排隊文化，哪些法官可以調任最高法院，最高院庭長的意見，比院長、司法院長有分量；升庭長，但看年資，判決擺一邊，時間到了自然到手，且無任期，做到退休為止。

最高法院固應在穩定下求變，但不能以安定為理由延宕改變。等著做庭長的既得利益，阻礙人才出頭，齊頭平等的安逸，如何激勵裁判品質的精進？凡此種種，都讓基層法官不願再等待。

在連署前，基層法官已嘗試打破慣習，不再照單全收由最高法院法官屬意的調任人選，開始從人品、判決品質，提出可供評比的標準，以改造最高法院。此外，更進一步抓緊最高法院院長更迭的時機與總統對話，以庶民容易理解、最容易達到改革的廢除「保密分案」制度，撼動最高法院的心牆，也給新任最高法院院長一枚震撼彈。

可以想見，當總統認同連署法官的訴求，最高法院的法官多麼尷尬難過。而當基層法官以內行人之姿揭開最高法院的沉痾，最高法院亦難對外辯駁。但直攻最高法院的改革運動，若淪為上下交相責的惡鬥，反會拉下審判的品質，反之，如能上下齊心、友善對話，就能加速帶動改革。

值此動盪的時機，楊鼎章出任最高法院院長，任務非比小可。他必須搭起上下審級間溝通的橋梁，化指責為對話，展開說服內部的工作，以基層法官的期盼為動力，帶動最高法院建立新的人事、審判文化。

審判是為人民解決問題而存在，不能自築專業傲慢的高塔，關起門來做大王。當判決文字艱澀難懂，原被告要用青春歲月癡等一個結果，審判僵化成法官群體說給自己人聽的呢喃，人民如何信服司法。而解決問題的鑰匙，有一大串掌握在最高法院的手裡，只要最高法院有心，帶領下級審「質變」，並非不可能的事。

審判文化雖然不能一蹴改變，有心開始，就會產生蝴蝶效應。這是審判脫胎換骨的絕佳時機，期盼新任院長能與所有法官破浪前行，開創新局。