The Issues at the Supreme Court Are Far More Than Just Confidential Case Assignment

When stepping down upon reaching the mandatory retirement age, former Supreme Court President Yang Jên-shou accused President Ma of directly directing the judiciary and reaching his hand into the trial system; he criticized Judicial Yuan President Lai Hao-min for exceeding the boundaries of judicial administrative supervision; and he also blasted the newly appointed Supreme Court President Yang Ting-chang not to lose himself for the sake of becoming an official. The severity of his phrasing was unprecedented. Particularly within the traditionally conservative and low-profile judicial system, it drew even more attention and consequently occupied the headlines of major media outlets. A few days later, the former president stated that he had destroyed many lobbying documents on the eve of his retirement to prove that the black hands interfering with the judiciary have always existed. The former Supreme Court president, making frequent moves, was simply trying to defend the Supreme Court's confidential case assignment system.

      Open casually any textbook on criminal procedure law, and it will first introduce the basic principles of criminal proceedings. Direct trial, public trial, and oral trial are included among these principles. Simply put, when a court tries a case, it must directly interrogate the parties and witnesses and observe physical evidence; the courtroom during a trial shall be public, allowing unspecified third parties to freely attend and observe; and the court must interrogate the parties and witnesses by oral statements. The Court Organization Act also explicitly stipulates that litigation arguments and the pronouncement of judgments shall be conducted in a public courtroom. When a courtroom is not public, the presiding judge shall proclaim the reasons for it not being public.
        
      The above are all principles for courts at all levels to try cases. The Code of Civil Procedure specifically stipulates that judgments of the Supreme Court shall be rendered through oral argument. However, this shall not apply when the court deems it unnecessary. As for the part of the Code of Criminal Procedure, it stipulates that judgments of the Supreme Court shall not be rendered through oral argument. However, the court may order arguments if it deems necessary. In other words, whether as a rule or an exception, the Supreme Court cannot close its doors and try cases on its own accord.
        
      However, what has been described above is only understanding this matter from a doctrinal and legal perspective. If we return to the practical aspect, everyone will surely be very interested to know what the actual implementation results are. According to media reports, since the Supreme Court moved to Taiwan with the Kuomintang government in 1950, over the past 62 years, criminal cases have only held oral argument hearings once each in 1978 and 1997. During the same period, the number of civil case hearings was slightly higher, but only 9 times. The Supreme Court boasts of being the court of last resort in our country's judiciary, where all individual judicial cases await the Supreme Court's final word. Whether living or dying, losing or winning, is entirely up to the Supreme Court. In addition to the power of life and death over individual cases, the Supreme Court also has the power to establish precedents. If a lower court's judgment violates a precedent of the Supreme Court, its legal effect is the same as being illegal. Observed from this perspective, although the Supreme Court is a judicial organ, its power is even close to the legislative power, because violating a precedent of the Supreme Court has almost the same effect as violating a law enacted by the Legislative Yuan.
        
      The Supreme Court is so important, yet judging by the figures that it has only held hearings 11 times for civil and criminal cases combined over the past 62 years, it is clearly a blatant insult and contempt for the provisions on trial hearings in the Codes of Civil and Criminal Procedure. We often comment on the phenomenon of some politicians refusing to frankly admit their mistakes when faced with committing them as 'stubborn quibbling' (ying-niu). If judged by the same standard, the law stipulates that whether as a rule or an exception, the Supreme Court must hold court hearings for trials. The Supreme Court's performance on this matter is not wronged at all to be called 'stubborn quibbling'.
        
      Former Supreme Court President Yang stated that the Supreme Court is a court of law; aside from requiring oral arguments, which according to Article 86 of the Court Organization Act stipulates that 'litigation arguments shall be conducted in a public courtroom', all else is done entirely in writing. The first thing that should be questioned about this statement is that the Supreme Court is indeed a so-called court of law, because the scope of its adjudication does not extend to the investigation of facts. However, regarding why a court of law does everything exclusively in writing, we do not see former President Yang present any legal basis for this assertion. The next question is, even if it is not necessary to investigate facts, must it necessarily be unnecessary to listen to the 'legal' arguments of both parties? Take death penalty cases as an example, reasonable or not, before the Supreme Court can finalize a defendant's death sentence and send him to the execution ground to be shot, can it not listen to his final statement or the legal defense made by his lawyer for the defendant? Why do judges in district courts and high courts afford defendants the opportunity for a final statement by law before closing a case, whereas at the Supreme Court it becomes unnecessary instead? May I ask what the reason is for making such different treatment and disposition? The Supreme Court is to decide that a person is permanently isolated from society and unforgivable, yet it does not even give him a chance to cry out his grievances—is that reasonable? Why deprive them of their last procedural opportunity? The transnational European Court of Human Rights is an unadulterated court of law, yet they still hold hearings to listen to the legal opinions of both parties. What strong reason does our Supreme Court have to refuse?
        
      Former President Yang also stated that whether or not to adopt confidential case assignment is a matter of assignment of duties for a court of law and written review. The assignment of duties is a system established to ensure judicial independence. What method of case assignment should be adopted for a court of law and written review is not something that anyone other than the judges of the court of law can meddle in. In other words, from this remark, we can know that what former President Yang advocates is that confidential case assignment is a system established to ensure judicial independence. If reversed, this sentence also seems to tell everyone that without confidential case assignment, it is difficult to have judicial independence, and confidential case assignment has contributed immensely to the assurance of judicial independence.
        
      If we have not misunderstood former President Yang's meaning, the first question mark that floats up is that the district courts and high courts nationwide do not have judicial independence because they do not implement a confidential case assignment system. This statement would frighten the vast majority of the general public as well as first- and second-instance judges. The reason is that although the majority of the public is not quite satisfied with the judiciary, they would not immediately say that adjudication lacks independence. At this point, what further needs to be clarified is: what is the substantive function of confidential case assignment? What did it promote? What did it sacrifice? Should it still be maintained?
        
      To answer the above questions, we still must look for answers in former President Yang's public remarks. He stated that the Supreme Court's confidential case assignment method utilizes multiple procedures, executed through computer random codes by various presiding judges and judges in charge. Its mode of operation, repeatedly revised wisely by predecessors over decades, is completely transparent, and the procedure can not only be made public but is also quite fair. Into whose hands a case is assigned, except when holding oral argument or closing the case, is strictly unknown to anyone—including the president, presiding judges, and any judges other than the assigned judge.
        
      Former President Yang indeed detailed the actual operation of the current Supreme Court case assignment method. The starting point of this confidential case assignment system should be to prevent violence, money, lobbying, and interference from intervening in the final decisions of individual judicial cases. In the authoritarian era, it should have had a certain historical function. However, in 21st-century Taiwan, society is becoming increasingly democratic and open; openness and transparency are basic requirements for the exercise of power. Reforms in the legislative and administrative branches are all striving in this direction, and they have already achieved considerable results. Should the judicial organ be tolerated as a lawless enclave outside the realm?
        
      To be fair, if it is difficult for outsiders to know who the presiding judge is, the aforementioned interfering factors are indeed more difficult to succeed. But relatively speaking, the rights granted to parties by procedural law to apply for the recusal of judges, the rights of lawyers to apply for file review, and the basic procedural principles of direct trials, public trials, and oral trials must all be prioritized for sacrifice in order to keep the presiding judge's identity unknown through confidential case assignment. What is more, in any confidential matter, a lapse is always unavoidable; the legend that someone might find out the presiding judge of the Supreme Court has never been eradicated. In comparison, how to choose between the so-called confidential case assignment—which cannot necessarily ensure complete confidentiality—and the basic litigation rights of the people is truly self-evident. Needless to say, making the presiding judge's identity explicit facilitates public supervision, thereby eliciting the judge's sense of honor, which in turn promotes the production of fair and progressive judgments and has the reflective effect of enhancing judicial credibility; the gains and losses are starkly contrasted. As for the suspicion and distrust caused by litigation parties and the general public being unable to obtain information on Supreme Court trials, they will gradually vanish into thin air as matters become transparent—why not be happy to do so? However, changing the practice would probably only alter the work habits of Supreme Court judges. As for the various pressures that must naturally be borne as a judge, and the basic cultivation of character to face temptations with equanimity, these are fundamental abilities that need not be spoken of before being promoted to Supreme Court judges. These abilities are the best guarantee for further enhancing judicial credibility. Otherwise, if even the Supreme Court judges who make decisions of last resort find it difficult to win the general public's trust in their basic character and stress-resistance abilities, then no amount of reform effort will be in vain.
        
      Fortunately, after a short period of turmoil, the Judicial Yuan decisively announced that it would amend the internal rules of the Supreme Court, allowing the confidential case assignment system to successfully complete its historical mission and step into history in the short term. This movement, sparked by a spontaneous petition for reform by nearly 600 grassroots judges, has finally achieved preliminary results. Furthermore, the Supreme Court additionally announced that it has selected a criminal case to hold oral argument at the Supreme Court on the morning of April 25, which will be the 3rd criminal case to hold a court hearing in 62 years.
     
      The confidential case assignment system of the Supreme Court was originally established within the internal rules of the Supreme Court; therefore, the adjustment of this system only requires the Judicial Yuan to decide on its own without even amending the law. What is worrying is that whether case assignment can be determined in advance through abstract assignment rules is actually the first step toward whether the judiciary can be trusted. If not, the controversy caused by the replacement of judges in the Chen case is the clearest evidence: at the inception of a case, the fairness of the judiciary is severely questioned. Accordingly, incorporating the principle that case assignment should be open and transparent into the Court Organization Act, and establishing a sustainable case assignment mechanism, is an important step in extending the fruits of this Supreme Court reform to universal and integrated application across courts at all levels. This is the absolute bare minimum fruit of reform, and as time accumulates, its achievements will inevitably be shared by all citizens.
        
      After breaking the spell of confidential case assignment, the long-standing practice of not holding oral arguments, which has hollowed out the basic principles of litigation, will no longer exist. Therefore, depending on the importance of the case, holding court hearings for oral arguments and returning to the basic operating spirit of the law is highly anticipated. It is believed that with the Supreme Court actually holding court hearings on April 25, the aspiration to bring litigation procedures closer to fairness and rationality will no longer be distant.
        
      Another widely concerned reform issue of the Supreme Court is that judgments from various divisions of the Supreme Court exhibit differing legal opinions, leading to different outcomes in similar cases. This severely impacts the image and credibility of the judiciary, thus earning it the mockery of 'dice-rolling judiciary'. When similar cases have different outcomes simply because of different judges, who would still dare to trust the judiciary? Currently, although the Supreme Court has established a joint meeting of civil and criminal division presiding judges in an attempt to resolve the aforementioned differences in legal opinions, its meeting threshold is too high to cope with practical needs, and there is truly a need for further reform and refinement. Therefore, there are calls for reform to establish a 'Joint Grand Chamber'. In short, if there are inconsistencies in legal opinions among divisions that are sufficient to affect the outcome of a judgment or possess principled importance, a Joint Grand Chamber may be convened to discuss and directly render a judgment, completely eliminating the problem of divergent judgment opinions. Of course, if the number of Supreme Court judges can be reduced, it is another reform direction to thoroughly resolve divergent opinions.
        
      In addition, the precedent system long practiced by the Supreme Court is another heavily criticized target urgently in need of reform. The precedent system originally existed to unify the legal opinions of courts at all levels. For the sake of simplicity, it has been inherited to this day, only to become a state where the legal opinions expressed in precedents are detached from the facts of individual cases. Combined further with the system of administrative evaluation, it forces judges to mechanically apply precedents, which instead hinders the critical thinking process in judicial judgments. Since identical facts should yield identical judgment outcomes, and vice versa, if the facts of a judgment are unclear and precedents are merely cited abstractly, it inevitably leads to deformed judgment outcomes. For example, someone who carries a small shovel to steal a few bamboo shoots by the roadside is charged with larceny while carrying a dangerous weapon, and must be sentenced to fixed-term imprisonment of 6 months or more by law, without the option of a fine in lieu of imprisonment, and must serve time in prison. The mastermind causing this kind of unreasonable judgment is a precedent from decades ago which held that: 'Larceny carrying a dangerous weapon only requires carrying a weapon with dangerous properties at the time of the theft; it is not necessary to have the intent to commit violence at the beginning of carrying it.' Based on this, the precedent system has reached a point where it should be substantially overhauled.
        
      Finally, we must talk about the personnel issue of the Supreme Court. The beginning of the calls for reform of the Supreme Court this time stemmed from former President Yang's retirement upon reaching retirement age in mid-February this year, with grassroots judges launching a petition demanding prudent selection of the Supreme Court president, directly touching upon personnel issues. The main demand is that judgments rendered by the Supreme Court directly determine the quality of the judiciary, and its head's every move and action has a profound impact. The President, who holds the personnel appointment power for the Supreme Court president, must naturally choose prudently, yet there is currently no mechanism to assist the President in selecting a suitable candidate, nor any institutionalized supervision method, which still requires the joint efforts of aspiring individuals. On the other hand, besides the candidate for the president, Supreme Court judges play the role of final decision-makers in every individual case. Whether a mechanism for merit-based promotion can be built will inevitably become an important topic for the next judicial reform. For instance, if a diversified, institutionalized channel for selecting Supreme Court judges can be established, it will surely strengthen the depth and breadth with which judicial judgments respond to social changes. Concrete methods currently proposed include selecting outstanding scholars and lawyers to directly assume the office of Supreme Court judges, so that theories, concepts, and values leading social progress can be appropriately integrated into judicial judgments, highlighting the progressive nature of the judiciary.
        
      The reform of the Supreme Court has ignited hope due to the prompt eradication of the old system of confidential case assignment, and it also gives aspiring individuals—whether in or out of government, within or outside the system—an opportunity to jointly contemplate further deepening reform and strengthens the will and pace of reform. Relevant issues are presented above for all sectors to refer to. In comparison, the abolition of confidential case assignment is merely a side dish in the feast of reform.