Op-Ed | Reforming the Judges Evaluation Mechanism: Turning a Sick Cat into a Tiger

Before the enactment of the Judges Act in 2011, restraints on the inappropriate conduct of judges and prosecutors relied solely on internal self-regulatory mechanisms within the courts and prosecutors' offices. However, because these self-regulatory mechanisms lacked transparency and failed to effectively oust or penalize incompetent judges and prosecutors, the public generally perceived this as officials protecting one another, eroding confidence in the judiciary. Consequently, the demand to establish an external, participatory, and effective vetting mechanism to weed out incompetent judges and prosecutors became the primary driving force behind the birth of the Judges Act.

Driven by this public aspiration, the creation of evaluation systems for judges and prosecutors became the focal point of the Judges Act. Article 1, Paragraph 1 of the Judges Act explicitly points out the establishment of a judges evaluation mechanism to ensure the public's right to receive a fair trial. Since prosecutors are governed by mutatis mutandis application of the Judges Act, a prosecutor evaluation mechanism was established concurrently.

However, due to fierce resistance from the courts and prosecutors' offices against external oversight, the Judges Act was a compromised product of public-official wrestling within the legislature. Therefore, the highly anticipated evaluation system for judges and prosecutors falls far short of civil society's expectations. Six years into its implementation, the evaluation system that the public once hoped would eliminate incompetent judges and prosecutors is now ridiculed by the media as a golden bell-jar protecting problematic judges and prosecutors.

In retrospect, the evaluation system under the current Judges Act suffers from the following flaws that must be rectified:

First, there is a lack of independence. Take the Judges Evaluation Committee (hereinafter JEC) as an example: it is composed of 3 judges, 1 prosecutor, 3 attorneys, and 4 scholars and impartial members of society. The judge, prosecutor, and attorney members are all elected by their respective peers, while the scholars and impartial members are nominated in equal parts by the Ministry of Justice and the Taiwan Bar Association, and ultimately appointed by the President of the Judicial Yuan. With members selected this way, legal professionals constitute a majority, and the appointed scholars and impartial members have traditionally been legal academics, inevitably creating the impression that legal professionals are engaging in insider trading behind closed doors. Especially regarding the scholars and impartial members, the Ministry of Justice holds half the nomination power, and the President of the Judicial Yuan holds the final appointment power, which is more than enough to raise external doubts about the Committee's independence.

The Prosecutor Evaluation Committee (PEC) members are selected in a similar manner and face the same problem. Taking the PEC's 2015 Evaluation Resolution No. 7 as an example, the evaluated prosecutor not only arranged for the girlfriend of a detained defendant undercommunicado to meet with the defendant during an interrogation session, but also omitted any mention of this event in the interrogation record. Incommunicado detention is intended to prevent collusion and the destruction or fabrication of evidence; anyone with even a slight bit of practical legal experience knows the common sense that a person held incommunicado cannot have contact or communication with anyone other than their defense counsel. Otherwise, it defeats the purpose of the incommunicado order and violates the principle of non-publicity of investigations. Countless defendants held incommunicado and their families across the nation suffer from the anguish of missing loved ones and the fear of ruined livelihoods. The prosecutor evaluated in this case not only granted privileges to the defendant and violated the principle of non-publicity of investigations, but also cast a shadow of unfairness over the investigative procedure. Furthermore, the deliberate omission of this detail in the record naturally invites suspicion. From the public's perspective, it would be extremely difficult to conclude that such handling was entirely appropriate. Nevertheless, the PEC concluded that the evaluated prosecutor lacked the awareness of illegality (not knowing their actions were illegal) on the grounds that the law did not explicitly prohibit it, deciding that the individual evaluation case was unfounded and failing to even refer the prosecutor to the competent prosecutors' office for a warning or an admonition to improve their conduct. This case fully demonstrates that the current evaluation mechanism, composed of legal elites and lacking independence, not only outwardly appears as legal professionals shielding one another, but also reveals a significant gap between the mindset of legal elites and common societal consensus when making actual determinations on individual cases.

In contrast, California—the pioneering U.S. state that established a judicial disciplinary system—comprises its Commission on Judicial Performance with 6 citizens, 2 lawyers, and 3 judges, giving non-lawyers the majority. Furthermore, the governor, the state senate, and the state assembly each appoint 2 citizens, thereby cementing public participation to build public trust. Taiwan should reference California's approach by granting non-lawyers a majority on the evaluation committees, while ensuring that the Judicial Yuan, the Ministry of Justice, and even the Taiwan Bar Association do not meddle in the staffing of the evaluation committees, thereby establishing the independence of the evaluation mechanism and averting suspicions of professional cronyism.

Second, since the evaluation mechanism was created to effectively bind judges and prosecutors to professional ethics, the evaluation committees should naturally be endowed with the necessary and sufficient powers and resources to achieve this objective. However, for cases involving serious misconduct that warrant individual evaluation, the evaluation committees can only submit them to the Control Yuan for review or to the Personnel Review Committee (PRC) of the Judicial Yuan or the Ministry of Justice (hereinafter PRC) for deliberation, depending on whether disciplinary action is deemed necessary. In cases where the conduct of a judge or prosecutor is improper but does not reach the level of gross seriousness, the evaluation committees can only follow self-regulatory mechanisms, referring the matter to the respective court or prosecutors' office to issue a warning or urge them to take note and improve. The Control Yuan, the Judicial Yuan (or Ministry of Justice) PRC, and the respective courts or prosecutors' offices can all overturn the findings of the evaluation committees, resulting in decisions of no impeachment, no disciplinary action, or no disposition at all.

Take former Prosecutor-General Huang Shih-ming (黃世銘) as an example. The PEC concluded that he should be subjected to disciplinary action and referred him to the Control Yuan for impeachment due to his crimes of divulging secrets and abuse of wiretapping (PEC 2013 Evaluation Resolution Nos. 18 and 19). However, the Control Yuan failed to pass the impeachment motion, delivering a heavy slap in the face to the PEC. Aside from the Control Yuan, the PRC has also slapped the PEC in the face (PEC 2015 Evaluation Resolution No. 5 found that the evaluated prosecutor warranted disciplinary disposition, but after referral to the Ministry of Justice PRC, the PRC declined to impose any disciplinary action). The public created evaluation committees out of a distrust of self-regulatory official protection, but while the evaluation committees have a voice, their words carry no weight. They are toothless and clawless, truly serving as sick cats.

By contrast, California's Commission on Judicial Performance, following rigorous investigative procedures, can choose from various disciplinary measures depending on the severity of the circumstances if it determines that a judge has indeed engaged in improper conduct—ranging from advisory letters, private warnings, public warnings or censures, to removal from office or forced retirement. A non-lawyer majority equipped with disciplinary decision-making power is a key reason why California's Commission on Judicial Performance has earned the trust of California residents. If Taiwan does not want the evaluation system to remain a sick cat, it should grant evaluation committees full investigative and decision-making powers, transforming them into genuine tigers.

Of course, to exercise these powers in accordance with due process of law, the evaluation committees correspondingly require adequate full-time personnel and financial resources to conduct rigorous investigations, which necessitates independent budgets and staffing. Neither the JEC nor the PEC currently has full-time personnel, and the JEC's budget for 2017 was merely NT$848,000. U.S. states that emulate California by establishing independent judicial disciplinary mechanisms allocate budgets amounting to millions of dollars annually for this purpose, enabling them to hire staff including full-time attorneys. By comparison, Taiwan's evaluation committees have generals without soldiers, failing to yield the expected efficacy—which is entirely logical.

Finally, since the evaluation mechanism was created to ensure the public's right to receive a fair trial, parties harmed by the inappropriate conduct of judges and prosecutors should naturally possess the right to file complaints, and the evaluation mechanism should be designed to be people-friendly and easily accessible. State judicial disciplinary commissions in the U.S. establish complaint-handling windows precisely on the principle of facilitating public accessibility. In contrast, requests for individual evaluation under Taiwan's Judges Act are limited to bar associations, foundations meeting specific statutory requirements, or public interest corporate entities (currently primarily the Judicial Reform Foundation). This not only deprives citizens of the right to file complaints against incompetent judges and prosecutors, but by blocking public access, it also results in a scarcity of cases (the current 3rd-term PEC has only accepted 2 cases to date). This severely hinders the evaluation mechanism from functioning and unfairly shifts the entire cost of investigating and filtering complaint cases onto the aforementioned civil society organizations.

Take the Judicial Reform Foundation (JRF), which has been the most diligent organization doing the government's chores, as an example. In 2015 alone, the costs incurred for accepting public complaints—including personnel expenses, telephone bills, printing costs, and bento expenses for volunteer reviewing attorneys—were roughly estimated at nearly NT$1 million. This does not even include the uncompensated contributions of countless volunteer attorneys sacrificing their nighttime rest. Yet, because the JRF ultimately lacks the public authority required to investigate facts, despite the dedicated sacrifices of volunteers, it is practically impossible to thoroughly clarify every detail of a complaint case. Therefore, it is entirely logical that the JRF's success rate for evaluation requests has not exceeded 50%. Nevertheless, the JRF has suffered severe criticisms from official authorities as a result. Expecting civil society to do the government's chores makes no sense by any logic. To make the evaluation mechanism effective, rights must be returned to the people, allowing citizens to file complaints directly with evaluation committees that possess full independence, authority, independent staffing, and budgets.

Unless we want the evaluation mechanism to continue acting as a sick cat, this is what we ought to do.

※ Originally published in ETtoday on April 10, 2017