Friday, October 8, 2010

Judicial Reform Must Be Rooted in Public Aspirations

Judicial Reform Must Be Rooted in Public Aspirations
China Times editorial (Taipei, Taiwan, ROC)
A Translation
October 8, 2010

For the past several days, the Legislative Yuan has been interpolating the President and Vice President of the Judicial Yuan. Judicial reform has again become a matter of concern. The two nominees are Lai Hao-min and Su Yung-ching. Private sector legal reform organizations have characterized the two nominees as "incompetent" and "very incompetent." They say the nominees have never spoken up for human rights or taken a clear stand, while in academia or in politics. Either that, or they have taken a much too clear stand, in opposition to the conclusions of the National Judicial Reform Convention 11 years ago. The public may have high expectations regarding judicial reform. But does that mean those in charge of the Judical Yuan should be radicals? We should think twice. Inaction is not necessarily conservatism. The important thing is to find a pragmatic middle ground between progressivism and conservatism. Only then do we stand a chance of gradually achieving our goal of judicial reform.

The road to judicial reform has been a long one. Eleven years ago, the National Judicial Reform Convention convened. Just before that, the Ministry of Justice Hsiao Tien-chan influence-peddling scandal exploded. Hsiao was forced to step down. Then KMT Secretary-General Hsu Shui-teh boasted that "The KMT runs the court system." His remarks were explained away as a misunderstanding, But they still generated considerable controversy. As a result, former President Lee Teng-hui merely addressed the convention, but did not preside over it.

As one can imagine if a president fails to personally preside over a convention, he cannot possibly receive the full support of the executive branch. Even members of the Legislative Yuan expressed strong disagreement. As a result, the amendment process dragged on without success. Also, only 15 community leaders attended the convention. The convention was criticized as lacking public participation. Judicial reform includes institutional reform and organizational reform. But the key is the restoration of public confidence in the justice system, This was given scant attention in the hundred or so conclusions reached by the convention. As a result, the convention received little public support.

Eleven years later, most people have no recollection of what judicial reform convention members proposed. When people hear the words "judicial reform," the most common response is "It's meaningless!" The trial process takes too long. The justice they demand never prevails. Even a straightforward case in which a young girl has been raped, the judges act like legal hacks. They let the offenders off with a wrist slap. High Court judges are even guilty of accepting bribes. These are all problems the National Judicial Reform Convention are incapable of solving.

Eleven years later, judicial reform is still spinning its wheels. Why? Former Minister of Justice Lai In-jaw once used "two pyramids" to describe the conclusions of the judicial reform convention. He said bluntly that in the short term, real reforms were unlikely.

Is judicial reform really that difficult? The judicial reform convention arrived at two main conclusions. The first pyramid was to reorganize the Judicial Yuan, and abolish the three courts of final appeal. Beginning in January 2012, the Supreme Court the Supreme Administrative Court, and the Civil Service Judicial Disciplinary Committee, would all be merged into the Judicial Yuan. Fifteen judges would be placed in overall charge of all civil, criminal, administrative, civil service disciplinary, and constitutional interpretation cases. This huge project was to be implemented in three stages over 11 years, and include amending the laws governing organizations. The bill was submitted repeatedly, but the Legislative Yuan repeatedly refused to give it a third reading. The amendment never passed.

The Legislative Yuan is not necessarily being unreasonable if it disagrees with a bill. First, the current caseload is huge. Every year, nearly 19,000 appeals are submitted to the Supreme Court. No matter how good the 15 judges might be, they cannot possibly deal with them all. Secondly, suppose a high threshold is established for a third instance appeal? Suppose the public is asked to swallow its grievances, and accept being limited to a second instance appeal? As soon as the Legislative Yuan completed its third reading, legislators' phones would be ringing off their hooks.

Therefore, judicial reform can begin only by reforming the litigation system pyramid. In fact, the reorganization of Judicial Yuan can only be implemented after litigation system reform. Each year nearly 19,000 appeals are submitted to the US Supreme Court. The number is alarming. But the US Supreme Court has sufficient discretionary authority. It can reject an appeal without even offering reasons why. Each year an average of 70 to 80 cases are heard. Nine judges are sufficient to handle such a case load. If the same case were applied on Taiwan, who on Taiwan would tolerate 15 judges dismissing their appeal without offering a reason? Does any judge on Taiwan have the guts to dismiss 18,000 to 19,000 appeals a year?

This is the background behind the speedy trial bill. It was finally passed this year. It was applied to only two cases. The majority of cases were tried by District Courts and the High Courts. The Supreme Court retried the cases again and again. The conditions remained unfavorable. The high ideals of 11 years ago were destined to remain unfulfilled. Weng Yueh-sheng could not succeed. Lai Ying-chao could not succeed. Isn't demanding that Lai Hao-ming succeed putting him on the spot?

The road to judicial reform is a long one, and even more fraught with obstacles than the road to educational reform. What is the role of the Judicial Yuan? That for most people is not the issue. For most people the issue is the ensuring of justice, honest and fair judges, a swift and effective trial process, concern for human rights, and compassion for crime victims. Let judges descend from the clouds. Let them feel the pain felt by those caught in wheels of the legal machine. Demand that their rulings be consistent not only with the law, but with common sense and common decency. That is the simplest way to begin judicial reform. Such a reform process is not the responsibility of the President and Vice President of the Judicial Yuan, It is the responsibility of every prosecutor and every judge.












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