Resurrection of the "Tenure-Free Presiding Judges"?

The Supreme Administrative Court recently delivered its judgment on a case regarding the Judicial Yuan's mass transfer of 52 first- and second-instance presiding judges in 1989 (ROC year 88), which stripped some senior judges of their concurrent presiding roles. This sparked massive backlash and networking among presiding judges, who even sued the Judicial Yuan. Not only was this "judges suing the Judicial Yuan" unprecedented, but the judgment outcome was also shocking: the Judicial Yuan lost the case.

It is startling to see the Judicial Yuan's most drastic and effective judicial reform measure of the past two years in changing the judicial ecosystem—the "presiding judge tenure system"—meet with a defeat at the Administrative Court. This is surprising not only because the Administrative Court chose to turn a blind eye and legitimize the unreasonable system of "tenure-free presiding judges," but also because it self-righteously listed several grounds for its decision. According to media reports, the Supreme Administrative Court stated in its judgment that "although the position of presiding judge is concurrent in nature, the Act Governing Judicial Personnel Stipulates that presiding judges and judges are listed as a single category of judicial officers and should thus be protected," and that "although the duties of a presiding judge fall under judicial administration, they can serve as presiding judges of a trial panel and exercise the power of litigation direction. According to relevant regulations, those who concurrently serve as presiding judges are judicial elites. The Judicial Yuan's abrupt removal of them from these concurrent positions not only deprives the parties concerned of the right to have a presiding judge, but also has a major impact on their reputation, prestige, and work morale."

The messages conveyed by such content are: 1. Judicial administrative personnel stipulated in the Judicial Personnel Act must likewise be regarded as a type of "judicial officer" and should therefore be protected. 2. Although presiding judges belong to judicial administration, because they can serve as presiding judges of trial panels, they must all be judicial elites. 3. Removing them from the concurrent role of presiding judge will severely impact the judges' reputation, prestige, and work morale. These assertions leave us deeply perplexed. First of all, can the protection of judicial administration be expanded without limitation? From the ill-defined "judicial officer" to judicial administration, must all of them be granted the lifelong tenure protection for judges conferred by the Constitution? Is such protection thorough or simply negligent? Furthermore, just because presiding judges are judicial elites, does that mean they cannot step down from their concurrent roles? Does this mean that once a judicial elite becomes a presiding judge back then, they must remain a presiding judge for life? Moreover, is the Administrative Court unaware that even without being a presiding judge, one can still preside over cases as a trial panel head? Where does the claim of "depriving the right to serve as a presiding judge" come from? Finally, and most strangely, would a judge's reputation, prestige, and work morale be damaged simply by not serving as a presiding judge? If a judge only wants to be a presiding judge and disdains "merely" being a judge, what respect is such a judge even worthy of? And when the Supreme Court also agrees that only by being a presiding judge does one have dignity, prestige, and work morale, how are the thousands of other judges who are not presiding judges supposed to conduct themselves? Do these judges truly have no prestige, status, or dignity?

Faced with the Judicial Yuan's faltering steps in reform amidst the tug-of-war between old forces and old mentalities, it now also has to confront such out-of-touch judgments. Just as the evaluation stated when the Judicial Reform Foundation recently published its two-year comprehensive review of the National Judicial Reform Conference: reform is difficult, but reforming minds is even harder! For these honorable judges, the fastest path to reform is probably to change your minds!

※ Published in: China Times