Op-Ed | Lack of Transparency in Judges Evaluation Impairs Public Trust

Five years have passed since the enactment of the Judges Act, which established the evaluation systems for judges and prosecutors. As a supervisory mechanism distinct from internal "self-regulation" and carrying the nature of "external regulation," the operational results of these systems directly affect public trust in the conduct and integrity of judges and prosecutors. The functions of the Evaluation Committees are currently set to be reviewed by the 3rd Division of the National Conference on Judicial Reform. Given the persistently low public trust in judges in recent years, the operations and functions of the Evaluation Committees will inevitably face closer scrutiny from the public. Furthermore, while the Judges Evaluation Committee (JEC) and the Prosecutor Evaluation Committee (PEC) are similar in organization, the JEC's operational outcomes have been far superior to the PEC's. Therefore, this article first takes the JEC as an example, with the aspiration of helping the evaluation system gain broader public recognition.

The design of the Judges Evaluation Committee to have a "majority of external members" was originally intended to allow this body—still established under the Judicial Yuan—to exercise greater externality and external regulatory character in supervising the words and deeds of judges, so that the public could thereby trust the operation of the judicial system and the professionalism of judges.

However, over the past five years and across three terms of members, the cumulative resolution content of the JEC has not only failed to establish concrete standards for implementing the Code of Judicial Ethics, but has frequently sparked antagonism between the requesting evaluation agencies and the JEC or judges. Whenever a new evaluation resolution is released, it is invariably met with deep disappointment from civil society groups or fierce criticism in judicial forums. One cannot help but wonder: why does a system that consumes substantial social resources and champions "diversity, externality, and external regulation" so often lead to these negative, mutually draining outcomes?

One of the primary reasons lies in the "secret deliberation" method adopted by the JEC. Upon closing a case, other than a single resolution paper, the JEC does not make public any meeting minutes or voting results. According to the Implementation Regulations for Judges Evaluation formulated by the Judicial Yuan, matters such as "meeting discussion items" and "meeting contents and processes" are treated as confidential both before and after an evaluation resolution. As for how cases are randomly assigned or which member is in charge, it remains completely unknown. Even if there were considerations during the case review process to prevent evaluation members from undue pressure, what about after the case is closed? How did representatives from various sectors vote? What opinions did they express? If privacy is not involved, what justifiable reason is there for these deliberation documents to be exempt from public scrutiny?

From the perspective of the public, this mode of operation has zero transparency, preventing all sectors of society from deeply understanding the standards and reasoning behind the JEC's judgments, thus lacking a basis for communication and discussion. People can only criticize each other purely on the outcome of "founded or unfounded" without being able to study the reasons behind the resolution. Particularly in case types where resolution reasoning is crucial—such as "inappropriate demeanor or words and deeds"—if the outside world can ultimately only see "one narrative," it practically obliterates the advantages of the JEC's diverse composition.

Take the recent 2015 Ping-Tzu Case No. 10 as an example. During the preparatory proceedings, when "urging" a defendant who had no defense counsel and repeatedly denied criminal allegations to confess, the judge under evaluation stated: "You know it in your heart of hearts," "Take a good look at your own conscience," "It's up to you whether you want to confess or not, it will be the same either way," "The cell phones captured everything so clearly, everything is so clear," and "A bunch of things on the cell phone are things you filmed yourself, yet you still say..." (refer to pages 15 to 16 of the case's evaluation resolution).

However, the grounds for concluding the case was unfounded were shockingly: "The judge's intention was to remind the defendant to confirm whether the content of their statement matched the evidence in the case file," and "The intention should be to persuade the defendant to face themselves honestly." What a brilliant "face yourself honestly"! Were such "resolution reasons" truly unanimously agreed upon by the majority of the evaluation members? Or were they left to the handling member to improvise freely after the resolution of unfoundedness was reached? Did representatives from various sectors hold dissenting opinions? When the public cannot agree with the resolution reasoning, this "collective karma" is borne jointly by all legal professionals. Then how wronged are the members with dissenting opinions? How wronged are legal professionals with differing views?

Given that the evaluation system possesses a high degree of social public-interest nature, and that the evaluation members—consisting of representatives elected by the prosecutorial, judicial, defense, and academic sectors, as well as members nominated and selected by the Judicial Yuan—do not participate merely in their individual capacities, the meeting minutes of the judges evaluation system (except for matters related to the privacy of the person evaluated or case parties) should be made public to the general society, including resolution data and evidence such as opinions expressed by evaluation members, meeting records, voting circumstances and results. While this will inevitably impose a certain degree of pressure on evaluation members and even affect their willingness to serve, only by making records public can evaluation members be truly encouraged and supported in expressing diverse opinions, thereby reducing the possibility of evaluation members being influenced by "internal pressure."

Judges face tremendous job stress, and the public expects higher standards of conduct and speech from judges than in the past. In addition to ensuring they enjoy more adequate procedural safeguards during the evaluation process, the meeting minutes and voting results of evaluation resolutions (and even the courtroom audio recordings serving as the basis for judgment) should be fully disclosed. This would prove the innocence or impropriety of their words and deeds, gradually accumulate standards of conduct and speech that all judges can follow, and reduce the uncertainty of the evaluation system. Meanwhile, when both opposing sides have their respective valid reasons, it should be reflected in the vote counts and members' opinions. This can further prevent judicial evaluation from becoming an all-or-nothing zero-sum game, reduce meaningless antagonism and blame, and increase the space for objective, issue-based dialogue across all sectors of society.

Although the PEC is not the focus of this article, it does not mean that similar problems do not exist; in fact, the severity may even be worse. However, whether it is the JEC or the PEC, only through transparency that allows the public to fully understand and supervise can the public's voice ever be truly heard by this remote "evaluation system." If the Evaluation Committees do not even wish to make public or bear the responsibility of their own resolutions, how can the public trust that the evaluation system can make the "judiciary" shoulder the responsibilities it ought to bear?