Evading Accountability: How Does the Judiciary Defend Judicial Independence

On April 6, the High Court of England and Wales announced the retirement of Justice Timothy King of the Queen's Bench Division. Because a case he tried in 2016 was delayed in judgment for over a year—marking his third delayed judgment—he was reprimanded, reassigned, and forcibly retired. His departure marks a concrete achievement of judicial reform in the UK. British judges and prosecutors firmly believe that a judiciary capable of effective accountability is the only way to defend judicial independence.

To comply with the requirement of Article 6 of the European Convention on Human Rights guaranteeing the right to a fair trial, the UK initiated judicial reform in 2005, passing the Judicial Discipline Regulations the following year and establishing the Judicial Complaints Office to handle public complaints regarding judicial misconduct. The laws were amended again in 2013 to simplify the disciplinary process, expand the organization's powers and staffing, and rename it the Judicial Conduct Investigations Office (JCIO). Following the reorganization, it was staffed with 15 full-time personnel. Over the past 5 years, it has handled 11,720 complaints, initiated disciplinary actions in 206 cases, and removed 93 individuals from office.

Infringing upon the People's Right to a Speedy Trial

Strengthening judicial accountability is not unique to the UK; it is a consensus among European countries. To this end, the European Network of Councils for the Judiciary (ENCJ) published in 2015 "Minimun Judicial Standards V: Disciplinary Proceedings and Liability of Judges" to serve as a reference and guide for European nations. These standards specifically protect the public's right to file complaints. Articles 4 and 6 stipulate that the judiciary should establish independent bodies to receive public complaints against judges, that complaints should be investigated by dedicated personnel, and that complainants should be given the opportunity to present evidence in writing or orally during the investigation.

The basic right of European citizens to complain against judges is, however, treated like a flood or a ferocious beast by Taiwanese judges and prosecutors. On April 23, the Taiwan Judges Association issued a statement: "Opening up direct requests for evaluation by litigants will paralyze the Judges Evaluation Commission and become a means to intimidate and threaten judges." The Taiwan Women Judges Association, the Taiwan Judicial Reform Flash-mob, the Prosecutors Association, and Reformist Prosecutors Taiwan successively voiced their support, criticizing the version of the Judges Act draft proposed by the JRF and Legislator Yu Mei-hua and others, claiming it would turn the Evaluation Commission into a super "supreme court" with power but no accountability. Their wave of protests influenced the Legislative Yuan to suspend the review of amendments to the Judges Act.

The truth is that the Judges Act Evaluation Commission is merely a body that "initiates" disciplinary actions; the body that "decides" on discipline is the Disciplinary Court of the Judicial Yuan, which is composed of judges. The accusations by judges and prosecutors that an evaluation commission without disciplinary power would fetter judicial independence is sheer alarmism to evade accountability.

Compared to the UK, where anyone can file a complaint against a judge, Taiwan only permits specific agencies and organizations to do so. Over the eight years since the implementation of the Judges Act, the Judges Evaluation Commission has handled 58 complaints, found 25 evaluations to be grounded, and resulted in the removal of 1 person. The Prosecutor Evaluation Commission has handled 59 complaints, found 20 evaluations to be grounded, and resulted in the removal of 1 person. As bodies that likewise "initiate" disciplinary actions, the operational effectiveness of the UK's Judicial Conduct Investigations Office and Taiwan's Evaluation Commission are worlds apart.

To take another example, Judge Li Kūn-yeh of the Taiwan High Court presided over an ordinary civil case concerning the eviction of a house. After oral arguments concluded in May 2014, oral arguments were reopened 7 times, and judgment was not rendered until July 2016—a delay of over two years.

During the aforementioned period, he had a total of 32 similar delayed judgments, severely infringing upon the people's right to a speedy trial. However, the Judges Evaluation Commission resolved not to refer him to the Control Yuan for impeachment, but merely handed him over to the Judicial Yuan's Personnel Review Committee to "urge him to take note." (105 Nien Ping-Tzu No. 4) Compared to the UK where Justice Timothy King was forcibly retired for delaying judgments in 3 cases, Taiwan's judicial connivance and shielding of its own is no wonder it has lost the public's trust.

Incorporating Mechanism for the Removal of Unfit Personnel

The civil society version of the Judges Act draft draws upon international norms to design an effective removal mechanism for unfit personnel, focusing on: (1) Allowing the public to directly request evaluations and extending the statute of limitations. (2) Making non-lawyers the majority of evaluation committee members and expanding full-time staffing. (3) Increasing the Evaluation Commission's mandate to conduct comprehensive evaluations. (4) Bringing "errors in the subsumption between facts and law" within the scope of evaluation to supervise adjudication quality. (5) Requiring the Judicial Yuan to directly refer cases to the Disciplinary Court based on evaluation resolutions, thereby simplifying the disciplinary process.

The European Network of Councils for the Judiciary pointed out: "A judiciary that demands independence yet refuses accountability cannot win society's trust." If even European nations advanced in the rule of law do so, Taiwan should naturally strive to catch up. This Wednesday (the 8th), the Legislative Yuan will continue its review of the Judges Act. We call upon legislators to support the civil society version of the draft that strengthens judicial accountability; using reform to reawaken public confidence is the right and proper path to defending judicial independence.

※ This article was published in the Apple Daily on May 6, 2019