Supreme Hopes for the Supreme Court
United Daily News editorial (Taipei, Taiwan, ROC)
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.
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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.