Retaining the True Heroes Among Judges

When Judge Chiang Kuo-hua was trying the retrial case of the three death-row prisoners Su Chien-ho, Wang Wen-hsiao, and Liu Chi-kun, a senior judge advised him, "You can rule however you want in the Su Chien-ho case, just don't acquit them!" Judge Chiang asked him, "Then how do you suggest I rule?" The senior judge suggested, "You can convict them of theft! They went to steal things, but didn't commit murder!" Judge Chiang did not retort. Instead, on January 13, 2003, he overturned a death sentence endorsed by more than 50 judges and acquitted the three men on the spot.

After the Su Chien-ho case was finally acquitted and finalized, pro bono attorneys Su Yu-ch'en and Hsu Wen-pin brought the three men to pay their respects to Judge Chiang Kuo-hua, who had long since retired. Prior to this, the attorneys and the three men had never had any contact with Judge Chiang. Meeting at last after the acquittal became final, Judge Chiang revealed some of the inside secrets of trying the Su Chien-ho case back then. Hearing him say, "If I had to cater to my elders today and rule them all guilty, what would I have done? For the rest of my life, I would have felt extremely depressed!" We admire Judge Chiang Kuo-hua as a true hero among judges! Regrettably, subsequent ostracism by his judicial peers led him to decide to take early retirement.

Last year, the director of the documentary on the Hsu Tzu-chiang case hoped to have a judge talk about the pressure of bearing the vindication of a wrongful death-row case. Recommended by attorney Su Yu-ch'en, Judge Chiang Kuo-hua broke years of silence and accepted an interview. "My classmate told me that on the day of the sentencing [in the Su Chien-ho case], no one at the Supreme Court was working; they all came out to the corridors to curse at me, everyone came out to curse at me! Later, didn't I say that I had very few cases appealed? Every single one of mine was overturned! So there was nothing I could do, because no matter how I ruled, it [the Supreme Court] would overturn it! It was just sort of teaching me a lesson." Facing the camera, Judge Chiang spoke of how the pressure of judicial interference comes not only from the outside; the bureaucratic structure of judicial personnel likewise heavily influences the adjudicative behavior of judges.

To reform the improper influences of the bureaucratic structure, the Judges Act abolished judges' official ranks and performance evaluations in 2011, hoping that judges would no longer be controlled by promotions and evaluations. It further designed a comprehensive assessment system allowing the public to directly score judges as a reference for official performance evaluations, replacing "superior intent" with "public opinion." The problem is that these well-intentioned and fine laws have been hollowed out by judicial administration.

Take the 2014 comprehensive judge evaluations as an example: 90% of the public rated the judges trying their own cases as "excellent" and "good," while a relative 10% of judges were rated "fair," "needs improvement," and "urgently needs improvement." The Judicial Yuan, having gathered this public opinion, failed to convey the voices of public affirmation to the 90% of judges, nor did it reflect the public's dissatisfaction in official performance evaluations. Instead, out of a misplaced sense of harmony, it allowed 98.26% of judges to obtain a "good" (equivalent to Grade A) rating in 2015. The Judicial Yuan's manipulation to maintain the bureaucratic structure is the primary culprit behind the sluggish levels of trust in judges.

In June of this year, news broke that Judge Wu Tso-ch'eng—who overturned the inner conviction of guilt of 70 judges and ruled Hsu Tzu-chiang not guilty—decided to resign and switch to practicing as an attorney. Whether the judiciary has lost yet another "Judge Chiang Kuo-hua," we do not know. However, between supervising and eliminating incompetent personnel versus retaining exceptional talent, designing a system that strikes the right balance is no easy task.

This week, the documentary *The Practice Test of Hsu Tzu-chiang* is about to be released, and the Judicial Reform Guiding Conference is also scheduled to be held this week. We suggest that President Tsai Ing-wen and the judicial reform committee members first go watch *The Practice Test of Hsu Tzu-chiang*, reflect on the reasons why the public does and does not trust judges, and only then proceed to meetings and discussions on how to retain good judges who are truly worthy of public trust.

※ Originally published in Apple Daily on 2017/08/10