Tuesday, August 17, 2010

Judicial Self-Management Requires Judicial Self-Discipline

Judicial Self-Management Requires Judicial Self-DisciplineUnited Daily News editorial (Taipei, Taiwan, ROC)
A Translation
August 17, 2010

The Judicial Yuan has suspended three judges for influence-peddling and judicial misconduct. They have been handed over to the Control Yuan for prosecution, in the hope that the reputation of the justice system can be salvaged. The justice system has recently been plagued by one disease after another. The root of the problem is the failure of "judicial self-management." This failure has even cast doubt on the desirability of judicial independence. Clearly it is time to rethink judicial reform.

In 1995, a Taichung District Court judge refused to submit his verdict to the executive branch for approval. His action touched off a judicial independence movement. Since then the decisions of judges no longer require prior approval. The judiciary was fully liberated from executive interference. Eventually judges won the right to appoint personnel and assign cases, all under the banner of judicial independence. Judicial self-management took a giant step forward. Administrative oversight however, took a giant leap backward.

Fifteen years later, repeated incidents of judicial misconduct, judicial transgressions, and judicial dereliction of duty have shown that judicial self-management has resulted only in corruption and decadence.

Judge Yang Bing-long's rulings were often penned by his assistant. His office often stood empty. His status as an antiques expert nearly eclipsed his status as a judge. A High Court judgeship is not a sinecure. That Judge Yang could live the way he did, testifies to the failure of judicial oversight.

High Court Judge Kao Yu-shun came forward as a whistleblower. He blew the whistle on Supreme Court Judge Hsiao Ying-kui, who tried to influence the outcome of his son's hit and run case. When a judge's son becomes a defendant, why can his father intercede on his behalf? Why can a trial judge get away with doing favors for friends? Why are judges concerned about offending their colleagues? Why do judges "look after their own?" Why do judges go along and engage in legal sophistry? Why are judges unafraid of the "court of public opinion," but afraid of the ostensibly impartial justice system? Trial judges unthinkingly exchange the public good for personal interest. They undermine public confidence in the justice system by doing it system harm.

Judges luxuriate in judicial independence. But they have failed to demonstrate self-responsibility or self-respect. Therefore a judge's assistant can suddenly become a judge, He can suddenly become the prime mover behind a judicial ruling. Yet the court carries on as if nothing is wrong. A judge can bungle a case. He can commit glaring errors. But as long he does not engage in corruption or accept bribes, the courts look the other way.

When judges are assigned cases, judges with seniority are assigned civil cases, whereas judges with less experience are forced to preside over complex criminal cases. A new batch of "10,000 year judges" has settled in, and judges are assigned on the basis of seniority rather than ability. Judicial self discipline has gone out the window. But the Personnel Review Commission frets more about the rights of judges than their obligations. It worries more about judges than defendants. So-called "judicial independence" has evaporated. These are signs of degeneration. But judicial authorities merely turn a blind eye.

The credibility of the justice system has been severely damaged. It cannot withstand any more blows to its reputation. Fifteen years ago, judges spoke out. They asked everyone to believe them when they said they would manage themselves. The results have proven otherwise. The fact is, judicial independence is only possible with judicial self-respect. If judges lack self-respect, so-called judicial independence will merely provide unscrupulous people with more room to maneuver.

The Cheng Chi Project is courageously trying to clean house. Judges can begin freeing themselves from systemic peer pressure. This is a sign of judicial self-awareness. It is an opportunity for judges to prove themselves to outsiders. Will this opportunity lead to a renewal? That depends on the judges, on whether they follow through on what they have begun.

Judges must set ethical standards for themselves. They must demand moral rectitude and right conduct. They must institute rigorous oversight. They must not permit influence peddling to insinuate itself into the system. They must impose self-discipline. They must distinguish between right and wrong. They must not discriminate between high and low. Special laws for the impeachment of judges have yet to be passed. Until they are, the Civil Service Disciplinary Committee must play a disciplinary role and eliminate unfit judges.

People have yet to regain their faith in judicial self-management. Until they do, executive and other forms of oversight must be restored. Judges must be assigned cases based on the requirements of the trial in question. Long delayed cases must go forward. A review mechanism must be established. Indolent and corrupt judges must be removed from office. External oversight of individual cases must be provided. This will help judges resume their duties as trial judges.

The justice system is in trouble. If Acting President Hsieh Chai-chuan's only goal is to hold the line, he will forsake a rare opportunity for reform. Fifteen years ago, as fate would have it, Hsieh was President of the Taichung District Court. He was unable to deal with the judge who refused to submit to prior approval. This set off a wave of reform. One might say that Hsieh was and is a victim of fate.

Is he a victim of fate? Is this historical irony? The justice system is in decline. We must remind judges that 15 years ago, the public sided with the judges when they demanded the elimination of executive interference. The public yearned for a professional and independent trial system. But if judges become indolent, judicial self-managemtn will degenerate. The trial system will cease functioning, and public trust will be lost.

President Ma Ying-jeou must swiftly appoint a new Judicial Yuan President, one who understands the lesson of history. The new Judicial Yuan President must boldly eliminate the defects within the system. He must help judges reestablish self-discipline and self-management. He must oversee the system. Only then can judges once again hold their heads up high and proudly proclaim, "I am a judge."

2010.08.17 01:45 am















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