Judicial Accountability

Wonder if society's demands have been heard, this week saw relevant regulations emerging for judges and prosecutors respectively, demanding "accountability." For judges, it is the "Operational Guidelines for Seeking Compensation in Wrongful Imprisonment Cases"; for prosecutors, it is the "Basic Act on Legal Aid."

The former regulates that if judges or court clerks cause wrongful imprisonment cases due to intentional misconduct or gross negligence, they shall also bear liability for compensation. According to news reports, the genesis of these operational guidelines was the National Audit Office's audit of the Judicial Yuan's financial revenues and expenditures, which recommended establishing relevant compensation recovery regulations in accordance with the provisions of the Compensation for Wrongful Imprisonment Act. In other words, from the perspective of national finance, if the state compensates a victim due to wrongful imprisonment, and such wrongful imprisonment was caused by the intentional misconduct or gross negligence of a judge or court clerk, the state may seek recourse from that judge or court clerk. Regardless of the difficulty in defining "intentional misconduct or gross negligence," coupled with the possibility that a compensation review committee composed internally of judges might perpetuate a culture of mutual protection and thus affect whether these guidelines can achieve practical effect, the emergence of these guidelines at least affirms one thing—judicial personnel do not exempt themselves from the judiciary; if they do wrong, they must be held accountable.

As for the other, the Basic Act on Legal Aid, unexpectedly, despite the Ministry of Justice's full obstruction, the Legislative Yuan passed the original non-governmental version of the proposal at first reading, advocating that if a legally aided case results in a final judgment of acquittal after being prosecuted by a prosecutor, the prosecutor shall bear liability for compensation. Aimed at curbing abusive prosecution by prosecutors, although the provisions passed later were restricted to the nearly impossible scope of requiring the prosecutor to be subject to disciplinary action, it has already provoked a high degree of backlash from the prosecution, arguing that it will inevitably cause prosecutors not to dare to prosecute, indirectly affecting social security.

These two systems have certainly caused backlash within the system; however, it is worth noting that they have received almost overwhelmingly one-sided support from legislators and society. For no other reason than that we finally see the judiciary, like ordinary people, being held accountable for mistakes made. Even though the current scope of holding people accountable is so small, the process so rigorous, and the possibility of actual effect so negligible, we are all pleased to see judicial power evolve toward the direction of accountability. At least we seem to have hope that one day we will no longer have to tolerate an arrogant and conceited judiciary doing as it pleases. With the guarantee of lifetime tenure coupled with the lack of supervisory mechanisms, we only see Taiwan's judiciary holding others at fault, never seeing it take responsibility for its own mistakes. Whether it is wrongful imprisonment, presidential pardons, or criticisms and finger-pointing by the Control Yuan, we have never heard of any individual judge, prosecutor, or any prosecutors office or court institution ever standing up to apologize for the distress caused to the parties involved. Anyone who encounters the judiciary, regardless of winning or losing, will never be the winning party.

These two laws and regulations are only a beginning, let alone the fact that the Basic Act on Legal Aid has only passed its first reading as a draft; but if more voices tell our judicial personnel: stand up and take responsibility for your actions! Perhaps one day, we have hope that we will no longer have to endure a judiciary that only enjoys power without being subject to obligations.

※ Published in: Taiwan Daily