Unconstitutional Supreme Court Refuses to Convene or Hold Hearings
China Times editorial (Taipei, Taiwan, ROC)
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.
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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.