The Two Major Keys to the Success or Failure of the National Conference on Judicial Reform

The controversy surrounding the nomination of the President and Vice President of the Judicial Yuan has finally come to a temporary close after the nominees voluntarily withdrew and the President rescinded the nomination documents. Looking back at the entire course of events, it reflects that civil society is no longer satisfied with one-sided decision-making based purely on institutional authority, but instead harbors an undeniable and earnest yearning for procedural justice that is open, transparent, and provides participation and dialogue.

We believe that although this incident briefly delayed the progress of the grand undertaking of judicial reform, it also serves as an excellent turning point for all sectors of society to deeply reflect on how the judicial reform and the upcoming National Conference on Judicial Reform should be positioned and conducted.

The Judicial Yuan Should Participate in Decision-Making

First, civil society does not accept the mindset that the President and Vice President of the Judicial Yuan are merely chiefs of staff for the President's judicial policy. This point can also be deduced from the constitutional framework wherein both individuals simultaneously hold the status of Grand Justices, and their appointments are subject to congressional review rather than being directly appointed by the President. This means that the President and Vice President of the Judicial Yuan themselves must be responsible for the judicial policies formed and promoted in the future, rather than simply acting on the President's will.

Therefore, the future National Conference on Judicial Reform should not and cannot be without opinions from the Judicial Yuan and the voices of judges. If the Judicial Yuan were merely ordered to execute the resolutions of the National Conference on Judicial Reform without any participation in the formulation of judicial policies, it would clearly run completely counter to the fact that all sectors of society care so deeply about the nominated candidates and their constitutional awareness of human rights.

Second, although the heads of the Judicial Yuan must be responsible for judicial policies, past constitutional experience shows that as an independent organ, the Judicial Yuan simply lacks sufficient and necessary political energy to coordinate and integrate other organs in jointly promoting judicial reform.

The fact that the Judicial Yuan and the Ministry of Justice have long hindered and delayed the implementation of many judicial policies due to their respective institutional standpoints serves as a profound warning. Moreover, many judicial reform issues involve the statutory powers of other constitutional organs, and comprehensive and thorough judicial reform is a long-term and arduous social engineering project. It not only involves institutional reforms at the legal level, but also includes interactions with political, economic, social, and cultural dimensions, while further entangling issues such as power readjustment and the redistribution of interests. Its impact is far-reaching and can by no means be undertaken solely by the Judicial Yuan.

However, no matter how difficult judicial reform is or how much resistance it faces, the President, who shoulders the deep expectations of the vast electorate, has no excuse or reason to evade it. We also believe that the Constitution cannot, simply by designating the Judicial Yuan as an independent organ, prevent the people from utilizing other constitutional mechanisms to reform the judicial status quo that is in need of reform. The President, who holds the authority to consult and resolve disputes among constitutional organs, is precisely the pivot of this constitutional mechanism!

The President Convening the Conference Meets Expectations

Under this premise and understanding, the President's instruction to convene the National Conference on Judicial Reform, willingness to serve as the convener in order to provide necessary political and economic resources during the reform process, reconciliation of potential institutional disputes, and opening up mechanisms for public participation and dialogue to drive and inject necessary social energy into judicial reform, not only meet the people's expectations for judicial reform but are also the result of the Constitution responding to social changes and needs.

Based on the above understanding of the constitutional roles of the President and Vice President of the Judicial Yuan and the President of the Republic, we believe that the convening of the National Conference on Judicial Reform should not directly formulate judicial reform policies required to be executed by the Judicial Yuan; in fact, judicial policies that can truly achieve reform efficacy can by no means be formulated in one or two brief meetings.

This conference should seek to establish a public-private partnership network that allows "multi-stakeholders" to continuously participate, thereby facilitating the Judicial Yuan in forming responsive and accountable judicial reform policies, and enabling the President to stay informed at any time of institutional obstacles awaiting coordination and integration, truly assisting in the implementation and execution of policies.

We firmly believe that at a time when political democratization has extended to the nation's judicial power, judicial reform policies that deeply incorporate the opinions of civil society, coupled with the assistance endowed by the constitutional stature of the President, represent the greatest opportunity for successful judicial reform.

※ This article was published in the Apple Daily on August 17, 2016