The Balance Between Judicial Independence and Judicial Accountability

If you cannot solve the problem, solve the person who points out the problem. Recently, the legal community seems to have adopted this exact attitude toward the Control Yuan. When the Control Yuan recently released an investigative report on the miscarriage of justice involving former Legislator Ch'en Chao-lung, the Taiwan High Court first issued a press release accusing the Control Yuan of overstepping its authority. This was followed by a statement from the Judges Association accusing the Control Yuan of interfering with trials, with subsequent rallying cries from the Prosecutors Association, the Taiwan Jurists Association, and the Association of Women Judges. The last time the legal community responded so dramatically to criticisms of a specific case was perhaps only comparable to the Taiwan High Court holding a press conference on the Su Chien-ho case in 1996. The question is, does criticizing a finalized judgment in an individual case really infringe upon judicial independence?

The purpose of judicial independence is to safeguard the people's right to a fair trial. This is a fundamental human right protected under Article 14 of the United Nations International Covenant on Civil and Political Rights, as well as a statutory right under Article 1 of our country's Judges Act. To protect judges' independent adjudication from interference, the United Nations adopted the "Basic Principles on the Independence of the Judiciary" in 1985. In 1999, the International Association of Judges held its world congress in Taipei, adopting the "Universal Charter of the Judge," which has the protection of judicial independence as its primary appeal.

However, after the protection of judicial independence was established in the 20th century, the international community began to turn its attention to the issues of judicial corruption and inefficiency in the 21st century. Because protecting judicial independence is merely a means to an end, it must be paired with judicial accountability in order to achieve the purpose of protecting the right to a fair trial. As international norms on judicial accountability matured, the International Association of Judges held another world congress in 2017 and substantially revised the "Universal Charter of the Judge" to strengthen judicial accountability and counterbalance the abuses stemming from judicial independence. Among these, the most critical provision is Article 7-1, Paragraph 3, which establishes that in cases of "malice or gross negligence," the state may discipline judges regarding their "determination of facts, application of law, and weighing of evidence" in judgments. Compared to the 1999 version of the Universal Charter of the Judge, which did not permit any disciplinary action against judges regarding the "determination of facts, application of law, and weighing of evidence" in their judgments, this shift in the International Association of Judges' stance on defending the right to a fair trial is of great significance.

Taiwan is also a member of the International Association of Judges. The Judges Association of Taiwan sent representatives to attend both the 1999 and 2017 world congresses, and the Universal Charter of the Judge has already been translated into Traditional Chinese. It is impossible that the legal community is unaware that international law now permits the disciplining of judges for acts of "malice or gross negligence" in adjudicating individual cases. The notion that judicial cases cannot be criticized is an obsolete idea from the 20th century that has long been abandoned by 21st-century international legal academia; what is now emphasized is the proper balance between judicial independence and judicial accountability.

Furthermore, Article 30, Paragraph 2, Subparagraph 1 of the Judges Act explicitly stipulates: "After a judgment has become final, or in cases that have been pending in the first instance for over 6 years without a final judgment, there are factual grounds to believe that due to intent or gross negligence, the adjudication contains obvious and significant errors that severely infringe upon people's rights." This constitutes statutory grounds for the Control Yuan to impeach judges. Precedents can also be found in Disciplinary Judgment No. 1 of the Disciplinary Court in 2014 (103年度懲字第1號). If judges can be impeached and disciplined for major errors in adjudicating individual cases, then the Control Yuan's questioning of final judgments is merely a reinforcement of judicial accountability and is by no means an infringement upon judicial independence.

This October, when the Control Yuan released its investigative report on the miscarriage of justice involving former handball national team athlete Ch'en Ching-k'ai, the Taiwan Kaohsiung High Court issued a strongly worded rebuttal press release, already leading people to suspect that the Judicial Yuan was deliberately turning a blind eye. This time, the Taiwan High Court and four major official associations joined forces to counterattack the Ch'en Chao-lung case, almost making it a presumption that the Judicial Yuan is the mastermind behind the scenes. If even Control Yuan members are not allowed to criticize finalized judicial cases, then who among the common people would still dare to cry out against injustice. Such tactics of silencing people rather than reforming the judiciary to solve problems fill us with immense concern regarding the current direction of judicial reform led by the Judicial Yuan!

※ Published in the Apple Daily on Dec. 28, 2018