"Silver Vase Suddenly Broken and Water Gushing Forth"—A Record and Short Commentary on the Supreme Court Reform Roundtable Forum

Introduction: The Reform Wave of the Supreme Court

Starting with a petition activity initiated by over five hundred grass-roots judges to "Carefully Select the President of the Supreme Court," and catalyzed by the subsequent formation of the "Alliance of Judges Urging Reform of the Supreme Court" demanding the abolition of the outdated "confidential case allocation" system that infringed upon citizens' right of access to court, the operational methods of the Supreme Court have recently become a subject of intense public concern, thereby triggering numerous controversies between proponents and opponents.

A wave of reform movements targeting the Supreme Court arose in Taiwanese society in late 2011. Following the conclusion of the presidential election in early 2012, re-elected President Ma Ying-jeou expressed support for several of the reform proposals. However, former Supreme Court President Yang Jen-shou strongly criticized the President's inappropriate interference in the judiciary during his farewell ceremony. Particularly regarding the debate over whether the Supreme Court's confidential case allocation system should be abolished, the numerous arguments on both sides seemed to make sense, leaving people feeling as though they were looking at flowers through a fog, unable to discern which view was correct.

Therefore, to clarify related issues, the Taiwan Law Association and the Taipei Bar Association hosted—with assistance from PTS News Issue Center (PNN) and Taiwan Law Journal—the symposium titled "Supreme Court Reform Roundtable Forum Series I: Litigation Proceedings" on March 11, 2012, at the venue of the Taipei Bar Association. Experts, scholars, and legal practitioners dealing with related issues were invited to focus on four major outlines for discussion, hoping that through the in-depth analysis and dialogue of the participants, everyone could gain a deeper understanding of the reform direction the Supreme Court ought to take.

Under the theme of "Litigation Proceedings," guest speakers were invited to conduct an in-depth analysis and thorough review from both theoretical and practical perspectives regarding the following four specific issues:

1. Is there a need to amend the "confidential case allocation" procedure stipulated in Article 52 of the Enforcement Rules of the Supreme Court? Regarding the amendment of these rules, should it be undertaken by the Judicial Yuan or the Supreme Court?
   
2. Should the Supreme Court conduct oral arguments for legitimate third-instance appeals? Is it feasible in practice? Is there a need to amend existing regulations?
   
3. Should the Supreme Court disclose the identity of the judge in charge in its judgments? Is a statutory amendment necessary?
   
4. Is there a need to review and amend the theory and practice of the Supreme Court's "quota-based case allocation"?
   

Time: Sunday, March 11, 2012, 9:30-12:00 AM
Venue: Taipei Bar Association (9F, No. 7, Sec. 1, Roosevelt Rd., Taipei City)

Moderator: Wang T'ai-sheng (President, Taiwan Law Association; Professor, College of Law, National Taiwan University)
Discussants: Hsu Ch'ang-chin (Judge, Supreme Court)
Tsai Tsai-chen (Judge, Supreme Court)
Huang Kuo-chung (Representative, Judicial Yuan; Director of Administrative Litigation and Enforcement Department)
Wang Chao-peng (Professor, College of Law, National Taiwan University)
Ho Lai-chieh (Professor, Department of Law, National Chengchi University; Supervisor, Taiwan Law Association)
Lo Ping-cheng (Attorney-at-Law; Standing Supervisor, Taipei Bar Association)
Chien Chien-jung (Judge, Taoyuan District Court)

Although the confidential case allocation system was announced abolished a few days ago, the discussion content of this forum was substantial, and the various arguments regarding the four major outlines were debated amidst lighthearted conversation; much like a "silver vase suddenly broken and water gushing forth"—the moment the vase is struck, the water instantly bursts and splatters out, making it exceptionally brilliant. PNN News Issue Center provided live streaming and video recording throughout; interested parties can watch it via the YouTube platform. To avoid redundant and meaningless repetition, this article merely summarizes the argumentation contexts and points of dispute among the discussants based on their spoken remarks for everyone's reference, and concludes with a reflection in lieu of a formal conclusion.

Wang Chao-peng
1: Yes, because the rationale of "fear of lobbying" lacks a justifiable basis.
3: Yes, but not for all cases. Oral arguments should be held only for major cases involving principles.
4: Only then will defendants feel the trial is fair and public. Rapid sorting of disputed points. Attracting the public to understand legal issues.
5: Death penalty cases and major social cases.
6: To be discussed alongside oral arguments as a complementary package.
7: Naming the judge on the judgment should be an honorable thing.

Hsu Ch'ang-chin
1: Confidential case allocation complies with the principles of "prior, objective, and abstract" case allocation.
2: The amendment proposal should be submitted by the Supreme Court, while the Judicial Yuan is the competent authority responsible for making amendments.
3: This is a matter of legal system regulation and design.
7: The Supreme Court adopts a collegial panel system where everyone holds 1 vote out of 5, so there is no issue of an individual judge's "personal opinion."

Huang Kuo-chung
1: Open for discussion. Given different temporal and spatial backgrounds, whether to abolish it is open for discussion.
2: The Judicial Yuan. It possesses judicial administrative supervisory power.
3: A matter of legislative discretion by the legislature.
5: Foreign legal systems can be referenced. In Japan, oral arguments are held for all cases except dismissed and revoked cases, and Germany also conducts oral arguments.
6: There is no infringement on people's rights and interests, because major cases and cases where defendants are in detention are allocated first.
7: If confidential case allocation is abolished, the public will know who the presiding judge is.

Lo Ping-cheng
1: Yes. The Supreme Court is actually not that bad; it should be the court with the strongest stress tolerance and independence.
3: Yes. Oral arguments are not held due to the influence of confidential case allocation.
4: Legal and evidentiary investigations can be conducted, and scholars and experts can also be invited to express their opinions. This allows the four judges other than the handling judge to quickly digest and absorb the case.
5: Death penalty cases, major social cases, and cases involving major principles.
6: To be discussed alongside oral arguments as a complementary package.

Chien Chien-jung
1: Yes. Confidential case allocation violates people's right of access to court and lacks legal authorization; hence, it is both illegal and unconstitutional.
2: The Judicial Yuan.
7: There should be a system for the author of the judgment and the publication of (dissenting/concurring) opinions.

Tsai Tsai-chen
1: Disclosing the handling judge will not completely affect the success or failure of litigation. Judge recusal has not been a problem over the past decade.
2: The Judicial Yuan has respected the Supreme Court for over a decade, and things cannot just be changed on a whim now.
3: Oral argument is a suitable option for presenting opinions, but it is not the only option.
4: The court can appropriately exercise the power of elucidation.
5: Cases involving legal continuation and questions of principle are suitable. The death penalty is not suitable.
6: Quota-based case allocation is still currently necessary because the backlog of cases has constantly been cleared; once old cases are cleared, the quota issue will no longer exist.

Ho Lai-chieh
1: Yes. The Supreme Court should bravely step out of its doors and interact with scholars and the public.
3: Yes. Even for the application of law, oral arguments are needed.
4: Confirming court organization, clarifying appeal statements, evidence and judicial conviction, sentencing, and judgment pronouncement. Implementing the (mandatory) right to counsel. The defendant's final statement.
5: Death penalty cases, major cases, and cases involving major principles.
6: To be discussed alongside oral arguments as a complementary package.

 

Reflection in Lieu of Conclusion: The "Dream Supreme Court" on the Star Map

 

It can be said that the reason why each discussant presented different answers and arguments on various issues stems from their differing "imaginations" of the Supreme Court. Setting aside the merits and demerits of their arguments, looking purely at the direction of argumentation, Supreme Court judges mostly spoke cautiously starting from the current status, going no further than the boundaries set by law; in other words, their basic attitude is that changes can only be made in accordance with the law if the legal system and legal sources change. In contrast, the Judicial Yuan holds a neutral attitude, yet taking confidential case allocation as an example, it believes that since it has caused public concern and making a change is harmless, it might as well go along with public opinion. As for other scholars, lawyers, and grass-roots judges, they all suggested that the Supreme Court should undergo transcendental reforms—not stopping merely at the abolition of the confidential case allocation system, but rather seizing this opportunity to take bold and resolute action, turning crisis into opportunity, thereby winning greater public respect and increasing public trust in the judiciary.
Writing up to this point, we might as well pause for a moment and ask ourselves: what should our inner most ideal, dream Supreme Court actually look like? And the four outlines of the forum are just like stars at different positions on a star map; when we mark out the points we hope for in our hearts, and connect them one by one, an astrological figure will likely emerge. This image will be the ideal, dream image of the Supreme Court in each of our minds. The next question is how to turn these dreams into reality.
Having read their arguments, what does the "Dream Supreme Court" in your heart look like?