One of Taiwan's Judicial Transitional Justice Tasks ~ The Judicial Yuan Should Not Award the Judicial Medal to Hung Kuang-ts'an

If one has any understanding of Taiwan's past authoritarian history and human rights violations, the period just after the 228 Peace Memorial Day inevitably brings a sense of sorrow, along with prevailing calls for review, reflection, and "transitional justice." Unexpectedly, during the first week following February 28, 2015, the "Proposal Summary Table for the 2nd Personnel Review Committee of 2015" released by the Department of Personnel of the Judicial Yuan included a "Proposal to Confer the Judicial Medal" featuring Hung Kuang-ts'an, Judge and Division Chief of the Taiwan High Court. This sparked controversy among many judicial colleagues on the Judges Forum. Why should a "Proposal to Confer the Judicial Medal" be surprising? Is this not simply a gesture of warmth and gratitude from a public agency toward a retired civil servant, acknowledging their contribution to the public sector? Is it truly worthy of criticism?

The core of the issue lies in the special status of judges and the specific actions of Judge Hung. In particular, given Taiwan's authoritarian past, where many judicial personnel acted as executioners for the authoritarian regime, indiscriminately conferring judicial medals fails to align with the ideals of transitional justice. Furthermore, compared to past practices under the "Directions for Conferring Judicial Medals by the Judicial Yuan," which mandated medals based on judicial rank and years of service—a system where meeting length of service criteria resulted in automatic awards without reflecting individual contributions, a practice former Judicial Yuan President Weng Yüeh-sheng allegedly sought to reform by ensuring that those truly deserving were personally awarded by the President of the Judicial Yuan, while mediocre or non-contributory individuals received theirs through administrative staff or had to pick them up themselves—the "Directions for Conferring Judicial Medals by the Judicial Yuan" and "Regulations on the Operation of Conferring Judicial Medals by the Judicial Yuan," promulgated in 2012 and 2014 respectively, abolished distinctions based on judicial rank, allowing the highest-level medal to be granted regardless (embodying the principle that "judges have no seniority ranks"). However, medals are no longer awarded automatically based on years of service; recipients must demonstrate concrete contributions such as participating in trials, authoring judgments, or improving judicial administrative efficiency. Even if the positive criteria are met, medals should not be conferred if negative criteria apply, specifically: "acts that are illegal, improper, easily perceived as damaging to the judicial image, or causing poor public perception, making it clearly inappropriate to confer this medal."

What concrete contributions Judge Hung made to deserve this medal are not apparent from the Judicial Yuan's proposal. On the contrary, during the martial law period, he presided over the Formosa Magazine case that occurred on October 4, 1984. Specifically, Feng Hu-hsiang, author of the book Critique of Neo-Marxism, filed a private prosecution at the Taipei District Court on that day, accusing Ch'en Shui-bian (then a Taipei City Councilor and president of Formosa Magazine), Huang T'ien-fu (then publisher of Formosa Magazine), and Li I-yang (then editor-in-chief of Formosa Magazine) of joint continuous defamation. The accusation claimed that the weekly and periodical publications issued by the magazine on June 19, July 9, September 17, October 16, and November 20, 1984, published articles accusing Feng's aforementioned book of "substituting translation for authorship," labeling Feng Hu-hsiang as a "notorious hatchet man," and describing him as "fickle, deceitful, and glib, polite at first but cruel and ruthless later," which was sufficient to damage Feng's reputation.

Hung Kuang-ts'an, then serving as a criminal division judge (referred to as a magistrate at the time) at the Taipei District Court, took charge of the case and rendered a judgment on January 12, 1985, under Case No. 73-Tzu-1225. The main text of the judgment stated: "Li I-yang, Huang T'ien-fu, and Ch'en Shui-bian, jointly and continuously disseminating in writing, pointing out, and communicating matters sufficient to damage the reputation of another, are each sentenced to one year of imprisonment." The main text of the accompanying civil judgment was: "The defendants shall jointly and severally compensate the plaintiff in the amount of NT$2,000,000, and the defendants shall publish the full text of the judgment in the China Times and the United Daily News for two consecutive days." For most incumbent judges who entered the judicial system after democratic transition, this past history is naturally unknown, and even if known, the details remain unclear. It was not until November 2014 that someone reposted an article on the Judges Forum written by defense attorney Li Sheng-hsiung for the Formosa Magazine case, titled "On Judicial Independence and Impartiality Based on the Trial of the Formosa Magazine Case" (though this article was actually completed around 2006). In other words, after most judges had already become aware of this matter, the Department of Personnel of the Judicial Yuan remained oblivious to any impropriety and still nominated Judge Hung for the judicial medal.

Once this proposal was made, it predictably sparked heated discussions among judges. Some argued: "If Hung Kuang-ts'an indeed made this controversial ruling against opposition figures during the martial law period in the Formosa Magazine case, and if he can receive a judicial medal, not only will the judicial medal lose its value in honoring judges who uphold fairness, justice, and independence from authoritarian control, but who will ever dare to accept this award in the future? This concerns Taiwan's judicial image. Please let judges who share this consensus voice unified opposition on the forum to Hung Kuang-ts'an receiving the award." Others held: "Based on a speculative political op-ed shooting in the dark, and because the nominee's judgment did not align with a particular political stance, the nominee is subjected to criticisms of judicial transitional injustice, lack of judicial independence, and authoritarian control without concrete evidence. Aren't judges supposed to speak based on evidence?" Regarding the skepticism of the latter group, since Attorney Li Sheng-hsiung was indeed the defense counsel in the Formosa Magazine case and the original judgment text is available for inspection, the claim of it being "a speculative political op-ed shooting in the dark" is no longer an issue.

The crux of the issue is whether Judge Hung was questioned simply "because the judgment of the nominated award recipient did not align with a specific political stance." On this point, the author agrees with the view expressed by a colleague on the forum: "If the judge handling the case 'merely pandered, second-guessed the superiors' intentions, or acted out of political motives' to render this judgment, I agree the medal should not be granted; if it was 'entirely based on a personal firm conviction of legal interpretation,' can we withhold the medal simply because the resulting judgment sparked controversy or was later criticized as heresy?" However, determining whether the judgment was rendered "merely out of pandering, second-guessing superiors' intentions, or political motives" or "entirely based on a personal firm conviction of legal interpretation" is precisely the most difficult task, as it touches upon judicial independence. Furthermore, when many controversial judgments in current judicial practice are issued, judges routinely respond by invoking "judicial independence." Thus, clarifying this issue not only bears on transitional justice but also helps clarify, to a certain extent, how to evaluate the appropriateness of a judge's rulings.

Judge Hung's adjudication of the Formosa Magazine case can be discussed in three parts: conviction, sentencing, and the civil judgment ordering NT$2 million in compensation. Regarding the conviction, drawing on Attorney Li Sheng-hsiung's article "On Judicial Independence and Impartiality Based on the Trial of the Formosa Magazine Case" and supplemented by the full text of the judgment, the author believes that convicting the three defendants was clearly erroneous. However, evaluations of this aspect are subject to varying opinions, and the author chooses not to elaborate further. Secondly, regarding sentencing, judicial practice most strongly discourages sentencing that lacks rationality, transparency, and unjustified sentencing disparities. For a crime of defamation with a statutory penalty of imprisonment for up to two years, sentencing all three defendants to one year of imprisonment each is something I have never witnessed in my more than ten years of judicial practice. For a case that usually warrants a sentence of six months or less (which is commutable to a fine without imprisonment), Judge Hung sentenced the three defendants to one year of imprisonment each, not only sending them to prison but also leading some commentators to argue that the fundamental purpose of this judgment was to use the case to strip Ch'en Shui-bian of his qualifications as an attorney (the Attorney Regulation Act stipulates that attorneys who receive a final judicial sentence of imprisonment for one year or more may have their attorney qualifications revoked).

As for the civil compensation portion, judicial practice in our country has historically awarded low compensation amounts for defamation. Even in the 1990s, when the court ordered former President Lee Teng-hui to pay solatium to James Soong (Song Chu-yü) for defamation, the judgment was limited to NT$2 million. Yet Judge Hung in the 1980s ordered the three defendants to pay Feng Hu-hsiang NT$2 million. Can Feng Hu-hsiang's status and standing (factors that must be considered when determining solatium) be compared to James Soong's, or could the status and standing of Ch'en Shui-bian and the other two defendants at the time of their actions rival that of Lee Teng-hui? Or were prices simply higher in Taiwanese society in the 1980s? It is thus evident that Judge Hung's judgment may well be, as a senior High Court judge put it, "an executioner's verdict from the authoritarian era" and "a judgment designed to strip away even Ch'en Shui-bian's livelihood."

To my understanding, Judge Hung is a kind person who treats others well and lives in harmony with colleagues. Why wash our dirty linen in public and write an article publicly humiliating a retired judicial colleague? However, if the Judicial Yuan confers a judicial medal upon Judge Hung, would it not be "highlighting the absurdity of 21st-century justice, using a judicial medal to praise the actions of a judge who pandered, second-guessed superiors' intentions, or acted out of political motives during the authoritarian era of the 20th century"? The author is well aware that upon publishing this article, many colleagues will complain that I lack "loyalty and forgiveness (chung-shu)." Nonetheless, the author has thought deeply about this issue. Having previously published an article in the Judicial Reform Magazine titled "Taiwan's Judicial Transitional Justice Task ─ Starting from Retired Grand Justices Staging Campaign Rallies," which analyzed the stakes involved, I will not reiterate them here.

Finally, the author must point out that many incumbent judicial colleagues adopt a passive attitude toward the topic of transitional justice, preferring to be lenient toward their judicial colleagues and advocating that "one's own people should not make things difficult for each other." However, if judicial colleagues realize that the children of one of the three defendants in this case now work in the legal profession, meaning both sides are "our own people," which side should we choose to stand on? I believe most colleagues would agree: rather than choosing sides, we should choose to stand on the side of justice. The author has spent a significant amount of time writing this article precisely to reiterate: "Today we judge others, and tomorrow history will judge us," and "No judgment can escape the test of history." This is precisely the realization and reflection that we judicial personnel should hold most dearly during the 228 Peace Memorial Day.