Judges Should Not Compare Themselves to Ordinary Civil Servants

To eliminate the ills of lifelong presiding judges, the Judicial Yuan implemented a presiding judge term-limit system in 1999, which stipulated that, barring exceptional performance, presiding judges would generally not be reappointed. This resulted in approximately fifty first- and second-instance presiding judges losing their "posts." Judges Wang Chen-hsing (王振興) and Ku Chin-ts'ai (顧錦才) of the Taiwan High Court, refusing to accept this reform which conformed to contemporary legal trends, sought administrative relief. According to reports, the two judges primarily relied on the Court Organization Act and the Civil Service Promotion Act, arguing that presiding judges are different from ordinary judges and that relieving a judge of their concurrently held presiding duties is tantamount to a demotion. The Supreme Administrative Court supported the claims of Judges Wang and Ku, holding that those who concurrently serve as presiding judges are judicial elites, and that the Judicial Yuan's sudden termination of these concurrent duties not only infringed upon the parties' rights to be presided over by a presiding judge but also had a significant impact on their reputation, prestige, and work morale. Consequently, the reassignment decision constituted an administrative disposition, and the parties should be permitted to seek administrative relief. As the written judgment has not yet been officially released to the public, the detailed reasoning remains unknown, making premature praise or criticism difficult, and the Judicial Yuan has also decided to respond with a low profile for the time being. However, taking a comprehensive view, the "civil servant mindset" of judges revealed by this case is precisely the most incomprehensible and worrisome aspect.

We cannot help but wonder regarding this controversy over "relieving concurrent presiding judge duties": were Judges Wang and Ku fighting for a matter of principle, akin to Confucius's "I love its propriety," or were they fighting for practical interests, akin to Tzulu's "You love the sheep"? According to news reports, they viewed "relieving concurrent presiding judge duties" as a "demotion," and the Supreme Administrative Court similarly considered this action to "affect the rights and interests of the parties concerned." However, if one recognizes the difference between judges and ordinary civil servants, then whether or not one concurrently serves as a presiding judge—so long as one remains a judge engaged in the sacred work of adjudication—should give rise to no issue of "demotion." In substance, the decision likely had a major impact on their "reputation, prestige, and work morale" mostly because being relieved of the presiding role reduces titles and supervisory allowances while increasing case assignment volume. As for whether serving as a presiding judge necessarily equates to being a "judicial elite," this is likely a matter of opinion, because judging a judge's competence does not depend on whether he or she concurrently serves as a presiding judge, but rather on the mindset with which he or she approaches the adjudicative work! If a judge can carefully and diligently analyze, distinguish, and discern the right and wrong of every case handled without external interference, that person is an excellent judge; conversely, that person is a bad judge. As for whether one is an elite or not, apart from being judged by the outside world, it scarcely seems to be a matter that judges ought to concern themselves with.

Under a democratic system, judges represent the judicial branch, which is separate from the executive and legislative branches. Under the principle of popular sovereignty, their authority is conferred by the people. Furthermore, because adjudication directly impacts rights concerning people's lives, liberty, property, and status, its sanctity and importance go without saying. Therefore, advanced nations around the world invariably make the appointment of judges independent of the recruitment and selection of ordinary civil servants. While the appointment of judges in our country is indeed structured similarly, the Court Organization Act rigidly incorporates the rank classifications applicable to ordinary civil servant salary grading, as well as the systems of heads or principal officials, and applies them to judges. Moreover, apart from differing examination schedules and subjects, our recruitment exams for judges show almost no cultivation of professional ethics for individuals whose duties decide people's lives, deaths, liberty, and property. Consequently, once most law graduates in our country pass the judicial personnel examinations, they virtually turn into judicial bureaucrats, rarely recognizing how solemn and sacred the adjudicative work they undertake truly is. In a major court in northern China [Taiwan], for instance, internal disputes among judge colleagues once arose over unfair internal task allocations, with judges scrambling to be assigned to specialized court divisions with lower case burdens regardless of their familiarity with or interest in that legal field, resulting in quarrels so severe that the "Chief Judge" had to step in to mediate and formulate "ground rules." While we dare not assert that such judges necessarily perform poorly in adjudication, the ideal judges we envision in our minds exercising the power of life and death do not seem to be like this.

Naturally, we are not so naive as to think that judges should be completely detached from worldly affairs and concern themselves solely with being "sacred and transcendent." In the draft "Judges Act" negotiated between the Judicial Reform Foundation and the Judicial Yuan, a more sound system and complementary measures were proposed to substantially alter the methods of selecting judges and their intangible status. This proposal abandons the previous practice of allowing direct application to judicial exams immediately upon college graduation, replacing it with selection from prosecutors and attorneys with a designated number of years of experience, while establishing a term-limit system to facilitate the supervision and elimination of unqualified judges. It also substantially raises compensation to "foster integrity through generous pay," thereby implicitly elevating the status of judges above that of attorneys and prosecutors. The hope is that through selection and term-limit systems, outstanding legal professionals who truly understand adjudicative work, are well-versed in human affairs, and possess a strong sense of mission will be appointed as judges, thereby thoroughly transforming the public's long-standing negative perception of the judiciary.

A judge once remarked that a judge's adjudicative work involves humans doing the work of gods. Aside from highlighting the difficulty of discerning right from wrong in human disputes, this observation also implicitly points to the sacred and transcendent nature of a judge's work. If one lacks a sacred sense of mission and a transcendent, selfless spirit, and instead treats being a "judge" merely as a symbol of identity and status or as a well-paying and stable profession, that is not only a misfortune for the people but also a tragedy for the judiciary. We consider the civil servant mindset among judges to be absolutely unacceptable, and we support the Judicial Yuan in holding fast to its ideals and continuing to implement the "presiding judge term-limit system." Although the Supreme Administrative Court did not support the Judicial Yuan's view this time, earlier this year another panel of the Supreme Administrative Court rendered a contrary decision supporting the Judicial Yuan's view, demonstrating that virtue is never left to stand alone; he who practices it will have neighbors. Every small step forward in judicial reform is a great blessing for the people—the consumers of the litigation system. Keep it up, Judicial Yuan!

※ Published in: Liberty Times