The Courts Were Not Founded by the Kuomintang

After the Kuomintang (KMT) lost the provisional injunction case filed by Legislative Yuan President Wang Chin-pying at the Taipei District Court to preserve his party membership, a KMT representative told the media, "Stop saying that the courts are founded by any political party!"—once again sparking public debate.

The phrase "The courts were founded by the Kuomintang" originated from a remark made by former KMT Secretary-General Hsu Shui-teh in 1995 to appease party members involved in vote-buying: "The courts also belong to the ruling party." Regardless of his original intent, this statement has continually served as an example cited by the media and concerned individuals that courts can be subjected to political interference, remaining a nightmare for judges. However, even if Hsu Shui-teh had never uttered those words, a review of certain judicial practices from the early Republican era up until 1995 would likely lead ordinary people to harbor doubts about whether "the courts were founded by the Kuomintang."

Historical Events Causing Doubts Regarding Judicial Independence

In the late Qing dynasty and early Republican era, people of insight already attempted to establish a system of judicial independence in China. The Court Establishment Law at the time (the predecessor of the current Court Organization Act) explicitly prohibited judges from joining political parties in order to uphold the spirit of judicial independence. However, around 1925, the KMT government, in order to enforce the policy of "party-state governance," deleted the restriction on judges joining political parties. After the Judicial Yuan was established in 1928, its first President, Wang Ch'ung-hui, advocated for the "partification of judges" in his proposed guidelines and plans for judicial reform, arguing: "Party-state governance is all-encompassing, and judges, whose duty is adjudication, have an even closer relationship... If a judge lacks a clear understanding and firm belief in party doctrine, I am afraid they cannot render appropriate judgments." Subsequent President Chu Cheng also wrote in defense of the "partification of the judiciary": "In a country governed by the overarching principle of 'party-state governance,' the 'partification of the judiciary' should be regarded as 'business as usual'...".

Furthermore, the KMT Central Committee at the time, outside of regular judicial officer examinations, additionally passed regulations such as the "Examining Regulations Outline for Central, Provincial, and Municipal Party Headquarters Staff Engaging in Judicial Work," providing a back door for party workers to become judicial officers. The Judges Training Institute established in 1928 reportedly targeted classes four through six toward such personnel. Setting aside the legal proficiency of those hired, because their appearance carried the overt color of serving the Kuomintang, whether they could handle all cases impartially and selflessly was doubtful. According to Lei Chen, who served as Secretary-General of the Political Consultative Conference and Deputy Secretary-General of the National Assembly for the Drafting of the Constitution, the reason Article 80 of the Constitution enacted in 1946 differed from foreign models—specifically adding the words "must be beyond party affiliation" alongside "Judges shall be independent and above partisanship, in accordance with law, free from any interference"—was because the KMT had previously indoctrinated judges with KMT ideology to achieve its long-term, permanent dictatorship, rendering those who opposed or criticized the KMT unable to survive. Therefore, people outside the KMT frequently condemned the KMT's policy of a "partified judiciary" and demanded judicial independence, free from being the tool of any political party, prompting the specific inclusion of this principle in the constitutional amendment. Although it has been difficult to find traces of KMT activities inside the courts following Taiwan's authoritarian era, it is said that KMT party branches still existed within the courts around the 1970s. If true, it is not hard to imagine the KMT's influence over the judiciary before the end of Taiwan's authoritarian era.

Judges Resign En Masse from Political Parties to Repair Negative Image

In 1994, when Shih Chi-yang took office as President of the Judicial Yuan, he broke away from the style of past party-state elders by publicly resigning his position as a member of the KMT Central Standing Committee. He subsequently required judges to refrain from political activities, initiating the opportunity to sever ties between the courts and the Kuomintang. However, because the KMT actively recruited young students as party members in Taiwan in its early years, many judges held this status prior to becoming judges. Even though most became out-of-contact party members after taking office, it was often interpreted that a significant proportion of judges were KMT members. After the passage of the Judges Act in 2011, which explicitly prohibited judges from joining political parties and required judges who had previously joined parties to withdraw, a total of 458 people submitted declarations of party withdrawal. Among them, 67 were judges of courts of final resort (the Supreme Court, the Supreme Administrative Court, and the Commission for the Disciplinary Sanctions of Public Functionaries). Given that there were 121 judges in courts of final resort at the time, those declaring party withdrawal accounted for approximately 55%. This shows that claims regarding a substantial number of judges formerly being KMT members were not unfounded. Although the aforementioned figures are insufficient to establish that the KMT possessed the ability to influence judges' rulings prior to their declarations of party withdrawal, in our country where the rule of law is not yet fully perfected and public trust in the judiciary is insufficient, the en masse withdrawal of judges from political parties undoubtedly had a positive effect in cutting off the public's unfavorable impressions.

Judicial Independence Tolerates No Partisan Intervention

The Kuomintang insisted that Legislative Yuan President Wang Chin-pying was involved in judicial lobbying and therefore revoked his party membership. President Wang denied any lobbying and filed a lawsuit with the court to confirm the existence of his party membership, alongside a provisional injunction to temporarily preserve it. The KMT has already definitively lost the provisional injunction case to President Wang, yet stated that in order to "uphold judicial independence," it would still proceed with the main lawsuit. The main lawsuit is scheduled for its first hearing on December 4, and President Ma, who also serves as the KMT Chairman, has released reconciliation terms; subsequent developments remain to be observed. Nevertheless, the outcome of the provisional injunction ruling has indeed somewhat reversed the stereotypical impression held by some that "the courts were founded by the Kuomintang." Under the premise of "judicial independence," the question of whether "the courts were founded by XX party" should not exist. However, whether judges can completely eradicate the public's long-term negative impression of the courts depends on whether judges can allow ordinary rational people to feel the neutrality and impartiality of the courts in future related individual cases.