Unconstitutional Supreme Court Refuses to Convene or Hold Hearings

Unconstitutional Supreme Court Refuses to Convene or Hold Hearings
China Times editorial (Taipei, Taiwan, ROC)
A Translation
March 2, 2012

Summary: The transparency of the Supreme Court's system for court case assignments has been called into question. The Supreme Court hurriedly explained that the secret system for assigning court cases means that the person assigning the case does not know which judge will be handling the case. The Supreme Court has explained therefore the trials cannot be termed secret trials. But the Supreme Court has otherwise done nothing to change the systemic defects that have aroused public ire.

Full Text below:

The transparency of the Supreme Court's system for court case assignments has been called into question. The Supreme Court hurriedly explained that the secret system for assigning court cases means that the person assigning the case does not know which judge will be handling the case. The Supreme Court has explained therefore the trials cannot be termed secret trials. But the Supreme Court has otherwise done nothing to change the systemic defects that have aroused public ire.

The rhetoric of the Supreme Court convinces no one, It merely invites more questions about the Supreme Court's unconstitutionality. The Chief Justice of the Supreme Court is responsible for the judicial and administrative affairs of the Supreme Court, If the Chief Justice has no idea which judge is presiding over which case, then he or she is oblivious or indifferent to its administration of justice. Suppose a plaintiff or a defendant accuses the Supreme Court of burying a case, of refusing to try a case, even after 10 years have elapsed? Is the Chief Justice of the Supreme Court really incapable of ascertaining the particulars of the case? Suppose the plaintiff or defendant accuses the justice who presided over the case of accepting bribes? Will the Chief Justice argue that he or she doesn't know the identity of the presiding judge? The Chief Justice's administrative duties include oversight. If the system is deficient, how can he or she know who is presiding over which case? The Supreme Court's "explanation" is so absurd the system it describes could not possibly work.

The Supreme Court seems to think that not allowing the plaintiff or defendant know who the presiding judge will be, is right and proper, and not unconstitutional. The is the most serious problem of all. What is required is an understanding the constitutional requirements for a public trial. A public trial has certain basic requirements for which there can be no exceptions. The Supreme Court cannot convene without allowing plaintiffs or defendants know in advance which judge is presiding over the case. Withholding this information would violate the constitutional requirements for a public trial. The person assigning the court cases must not be permitted to pick and choose which judge will preside. This is right and proper. But that does not mean that once the case has been assigned, the plaintiff or defendant must be prevented from knowing the identity of the presiding judge. In fact, the Supreme Court prevents the plaintiff or defendant from knowing who the presiding judge is by never even trying the case. But when the Supreme Court refuses to look into a case, refuses to comment on a case, refuses to argue a case, its conduct is not merely illegal, it is also unconstitutional.

First, let us address the illegality, The General Provisions and Chapter Three of the Civil Procedure Law states that the presiding judge must offer oral arguments. Not offering oral arguments must be the exception. The Supreme Court's current practice is to offer oral arguments only in rare cases. In the vast majority of cases it flatly refuses to do so. This is clearly illegal. Years ago the Supreme Court presided over a civil suit, the "Hey hey hey Incident." But no sooner had it convened, then it passed sentence, Cleary the oral arguments were merely window dressing. The entire trial was a show staged for the benefit of those in power, specifically the Vice President. This was a negative example of public debate. This is why society lacks a proper understanding of public trials. The Supreme Court knows the law, yet ignores the law. How can it possibly offer leadership for the lower courts? How can it possibly demonstrate respect for the rule of law?

Existing procedural law, including the Code of Criminal Procedure and the Administrative Procedure Law, enable the Court of Final Appeals to try a case without public oral arguments. This is unconstitutional. This enables judges to treat oral arguments as mere pro forma ritual. This enables them to bury due process. This should be a key target of judicial reform. This is bad law that has enabled the Supreme Court to dispense with legal counsel even in major felony cases, and to consider doing so perfectly normal. The third and final appeal in civil cases require that the plaintiff or defendant be represented by counsel. Felony cases may result in execution or imprisonment. What possible justification can there be for not trying them publicly?

Pragmatists may argue that the number of cases submitted to Final Appeal is too great, and that is why the Supreme Court cannot hear oral arguments before it rules. But no country may cite heavy case loads as a pretext for opaque, illegal, and unconstitutional conduct. We must not emulate any country that does. If the Court of Final Appeals' case load is excessive, we must streamline the appeals process. We can refrain from remanding cases back for retrial. We can avoid multiplying the number of such cases geometrically. We can reduce the appeals process to one appeal, two trials. We can establish a process in which the Supreme Court addresses only the most important issues in second appeals, third trials. We can make the trial process more substantial, thereby reducing the need to make endless appeals. There are many ways to think about reform, and many ways to address the problems. We need not cling to outmoded ways. Sadly, we continue to allow the Supreme Court to break the law. We continue to allow the Legislative Yuan to write unconstitutional laws. We refuse to make a determined effort, We refuse to implement immediate reforms. The Supreme Court and those charged with the administration of justice must be subjected to harsh criticism.

Constitutionalism and the rule of law on Taiwan requires qualitative change. The judiciary has a poor understanding of constitutionalism and the rule of law. It is indifferent to illegal and unconstitutional conduct. It refuses to accept criticism, Expecting the judiciary to reform itself is wishful thinking.

中時電子報 新聞
中國時報 　2012.03.02
社論－不開庭、不辯論的高院違法違憲
本報訊

最高法院在現行分案制度的透明度遭到質疑之後，除了忙著向外界說明所謂保密分案是指分案者不知道辦案法官是誰，不能說是秘密審判之外，並無從善如流劍及履及改變制度上受人詬病之處的作為。

最高法院的說詞，不但不足以服人，而且只會引起更多違憲違法的質疑。最高法院院長應為最高法院的司法行政事務負責，若謂院長對於某一案件的辦案法官是誰，無從知曉，不是眛於事實，就是最高法院的司法行政出了根本的問題。假設當事人指責最高法院吃案，收案之後十年也未為裁判，最高法院院長難道無法查驗其事？假設當事人指控承辦其案件的法官索賄，院長難道能說我無法知道誰是承辦法官？院長職司行政職務之監督，怎麼可能在制度上缺乏知道什麼案子是由那位法官承辦的管道？如此荒謬的說法或是制度，怎能成立？

最嚴重的是，最高法院似乎認為，法官在宣判前不讓當事人知道誰是審判者，乃是天經地義，不會違憲違法；這就涉及公開審判之憲法基本要求的認識問題了。公開審判，必須是基本原則；不能是例外。最高法院從不開庭，事前也不讓當事人知道誰在審判，絕不能符合憲法要求的公開審判原則。分案時採取適當的步驟讓分案者不能選擇辦案法官，當然是好的方法，但這絕不是說完成分案之後也不許當事人知道誰在審判。其實最高法院不讓當事人知道誰是審判者的方法，就是從不開庭。然而，不事調查事實的最高法院，以不開言詞辯論為辦案常態，根本違法，也是違憲。

先談違法之處，《民事訴訟法》在總則以及第三審的篇章中都規定裁判「應」經言詞辯論，不採行言詞辯論為例外。現在最高法院將例外變成原則，絕大多數的案件，一概認為不必進行言詞辯論，已是明白的違法。多年前最高法院審理嘿嘿嘿事件之民事求償，曾經開庭辯論，但開庭後立即宣判，讓言詞辯論看起來只是儀式，又好像是在有權者（副總統）提告時所做的表演，這其實是公開辯論的惡劣示範，也是對於公開審判缺乏正確認識的緣故。最高法院有法不依，怎麼能夠領導下級法院做出法治示範？

現行訴訟法中，《刑事訴訟法》及《行政訴訟法》規定終審法院原則不經公開言詞辯論而為裁判，其實亦有違憲的問題。這樣的規定，讓言詞辯論在法官心目中成為過場，埋葬了正當法律程序的核心實質，應該要列為司法改革的修法要項。正是有了這種錯誤的立法，才會讓最高法院連重刑案件不需要律師辯護即可裁判，竟習以為常。試問，民事訴訟第三審尚且要求必須律師代理，奪人性命、自由的刑事案件卻可不必辯護，不必公開辯論，有何道理？

實務工作者一定會用終審案件數量過多，作為最高法院無法先經言詞辯論始行裁判的說詞。任何一個國家，如果可以用案件過多做為法院不透明、不守法、不守憲的藉口，都不是我們應該效法的國家。如果終審法院案件過多，就應在審級制度上謀求改進，可不可以不要一再發回更審，以幾何級數製造案件數量？可不可以減少審級，以兩審為原則，以第三審採取許可上訴制，只在最高法院處理最重要的法律問題？可不可以讓事實審變得真正堅實，減少上訴的實質需要？明明有許多應該思考的改革途徑不由，猶要抱殘守缺，寧可讓最高法院違法，讓立法院寫出違憲的訴訟法制，也不肯痛下決心，立即進行改革；最高法院乃至於司法行政的主事者，如何期待不會受到外界嚴厲的批評呢？

台灣的憲政與法治，必須追求質的提昇。司法者的憲法與法治意識貧弱，不以違法違憲為意，不肯虛心接受批評，想要摘掉恐龍的招牌，怕是緣木求魚！