The Past and Present of Judge and Prosecutor Evaluation Projects

Since its inception, the Judicial Reform Foundation (JRF) has held a vital objective: to exercise civil oversight over official authorities, with a particular focus on the judicial branch. Within the government, the core civil servants involved in law enforcement and litigation are judges and prosecutors. Consequently, exploring how civil society can empower judges and prosecutors to uphold contemporary human rights and the rule of law while performing their duties in accordance with the law has consistently been a core mission of the JRF.

To achieve this goal, the JRF has attempted numerous approaches since its establishment.

Court Observation Reports

Initially, the primary subjects of the JRF's oversight were judges, and the chosen method was court observation. Judges were selected because they are the figures in the entire law enforcement process who ultimately hold the power of fact-finding and legal application. Court observation was chosen as an oversight method because our nation's legal system stipulates that court trials are public by principle, allowing citizens to freely enter courtrooms to observe. This form of oversight not only invites greater public participation but also enables firsthand observation of judges' courtroom performance, making it both accessible and direct.

This oversight method has indeed yielded certain results. From the JRF's first court observation report in 1995 to the present, in courts where the JRF frequently conducts observations—such as the Taiwan High Court or the Taipei District Court—we can observe a transition: judges have gone from resisting court observation to accepting it, and from frequent inappropriate courtroom speech and conduct to a gradual recognition of the impropriety of such behavior following criticism. Over time, these behaviors have decreased, and these changes are significant. A regrettable aspect, however, is that some citizens have reported to the JRF that judges tend to be more earnest and maintain better decorum when court observers are present, only to revert to their old ways when no observers are around. In truth, appropriate courtroom conduct is a fundamental source of public trust in the judiciary. Court observation merely serves as a reminder to judges, and the importance of this conduct should permanently reside in the hearts of judges, independent of whether court observation is taking place.

Judicial Evaluation

When the JRF was established in 1995, it published its annual court observation report, and by 1998, it developed a new method for overseeing judges: "judicial evaluation." Simply put, judicial evaluation involves grading the performance of judges, an approach well-suited to be paired with court observation. The JRF's earlier court observation reports only described improper speech and conduct without mentioning the names of the judges involved, nor did they score individual judges. In other words, judges engaging in improper conduct faced no direct, named pressure to improve. By scoring judges' performance, the JRF hoped that judges performing well would maintain their standards, while those performing poorly would improve or be eliminated.

To be fair, the legal profession had actually conducted evaluations of judges before, but they only ever published the names of top-performing judges. The JRF's first judicial evaluation, however, publicly disclosed the names of the six judges who scored at the bottom. This approach sparked backlash at the time from the Judicial Yuan and certain judges of the high courts, who argued that it severely damaged public trust in the judiciary. Consequently, the then-CEO Lin Yung-sung (林永頌) and chairperson Kao Jui-cheng (高瑞錚) became defendants in criminal defamation lawsuits. Nevertheless, the JRF's intention was not to destroy the reputation of the judiciary, but rather to prompt official authorities to review and improve, given that the authorities themselves failed to conduct comprehensive evaluations or provide a method to weed out incompetent judges.

Precisely because the JRF's purpose in conducting "judicial evaluations" was not to destroy the judiciary, but rather to effectively oversee it and urge improvement, the JRF's evaluation methodologies have been revised year by year. Changes have ranged from lawyers scoring individual judges based on impressions, to asking lawyers to evaluate judges they encountered in specific cases they handled; from lawyers evaluating judges and prosecutors, to a three-way mutual evaluation involving lawyers, judges, and prosecutors to understand differences in observations across different roles; from aggregating various scoring criteria into a single overall score (which faced criticism that different criteria carry distinct meanings and should not be combined), to presenting scores separately across different categories; and from a percentage-based grading system (which drew criticism for being difficult to interpret—asking what the difference is between 85 and 83 points, or what score constitutes "good performance") to a five-tier satisfaction scale ranging from very satisfied to very poor. Evaluation indicators have also been adjusted, eventually acknowledging that the criterion of "moral character and integrity" is genuinely difficult to observe and score.

Unfortunately, no matter how much civil society evaluates judges, as long as the authorities themselves fail to propose effective methods for evaluating judicial performance and eliminating incompetent individuals, the "outcries" of civil society can only have limited impact. Therefore, alongside judicial evaluation, the JRF actively promoted the legislative enactment of the Judges Act, hoping to establish a structural mechanism to effectively weed out incompetent judges.

From Oversight of Judges to Oversight of Prosecutors

Overseeing judges is a relatively accessible entry point for judicial reform because courts inherently operate on the principle of public trials, and written judgments are made public. Oversight of prosecutors, however, is much more difficult. Investigations led by prosecutors are confidential by principle, and prosecutors are unaccustomed to being observed or monitored. However, "oversight of individuals" in the judicial system cannot stop at judges. Prosecutors are responsible for the investigation and prosecution of cases, and whether these investigations and prosecutions are conducted in a manner that safeguards human rights or involves the improper abuse of state power—such as abusive interrogation, unwarranted detention, or abusive prosecution and appeal—profoundly impacts the rights of defendants. Furthermore, appropriate investigative actions ensure that defendants who ought to be prosecuted are indeed indicted, while those who should not be are granted non-prosecution dispositions. Additionally, prosecutors presenting arguments in court must properly fulfill their role as the prosecution; otherwise, judges are forced to shoulder the burden of investigating evidence disadvantageous to the defendant, making it difficult to maintain the role of a neutral adjudicator.

In truth, whether through court observation or judicial evaluation, the JRF has sought to expand oversight over prosecutors, though this has proven difficult to execute. Because prosecutor interrogation rooms are not open to the public, court observations can only capture the performance of prosecutors appearing in court trials. As for evaluating prosecutors, because the retention of defense attorneys during the investigative stage is far less common than during trials, and lawyers are unenthusiastic about filling out evaluation questionnaires, the sample size remains insufficient to generate representative scores for prosecutors.

Consequently, specifically for the oversight of prosecutors, the JRF developed the method of "Analysis and Research of Not-Guilty Judgments."

Analysis and Research of Not-Guilty Judgments

In 2010, the JRF began analyzing cases that resulted in final not-guilty verdicts from the Supreme Court. The aim was to examine whether prosecutors in individual cases might have engaged in abuse of power or dereliction of duty, by studying the Supreme Court's critiques of prosecutors' improper indictments or appeals within not-guilty judgments. After conducting this analysis, cases involving more severe prosecutorial negligence were selected and published, with the hope that official authorities would hold the responsible prosecutors accountable and establish effective mechanisms to oversee prosecutorial performance.

Originally, it was hoped that for the selected cases involving potential prosecutorial abuse or negligence, complete case files could be obtained to conduct in-depth research before determining whether public disclosure was appropriate. However, defendants in not-guilty cases typically prefer to reclaim a peaceful life and wish to avoid dredging up the past, making them largely unwilling to provide complete case files. Consequently, the cases presented at the JRF's press conferences on not-guilty judgment analyses had to rely solely on the courts' critiques of the prosecutors for argumentation. In response, the Ministry of Justice and prosecutors' offices seized upon the fact that the JRF lacked the case files and fundamentally misunderstood the full picture of the cases to launch counterattacks. This represents the bottleneck encountered by the not-guilty judgment analysis method, forcing the JRF to seek other effective oversight approaches.

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New Initiatives Following the Enactment of the Judges Act: Requests for Individual Evaluations

The Judges Act was passed in 2011, and in July of the same year, the JRF established its Complaint Center to accept complaints regarding incompetent judges and prosecutors. Based on the complaints provided by citizens, submitting requests for individual evaluations of incompetent judges and prosecutors has become yet another oversight method developed by the JRF.

So-called "individual evaluation requests" mean that when citizens encounter situations where judges or prosecutors have acted unlawfully or been derelict in their duties, they can seek assistance from certain organizations and groups, asking these entities to submit a request on their behalf to the Evaluation Commission. The request asks the commission to investigate whether the judge or prosecutor indeed committed professional misconduct warranting disciplinary action, and to issue recommendations regarding discipline. In fact, throughout the legislative process, the JRF consistently demanded that citizens be allowed to directly submit evaluation requests to the Evaluation Commission. However, representatives from the Judicial Yuan refused, fearing that an influx of public grievances would overwhelm the commission's staffing capacity, and insisted on establishing intermediary organizations to help filter "public grievances," stipulating that evaluation requests could only be submitted through these designated entities. Ultimately, these provisions were passed in accordance with official demands. Although not entirely satisfied, the JRF applied to become an authorized organization eligible to submit individual evaluation requests in order to continuously monitor judges and prosecutors and assist citizens in reporting incompetent judicial officers.

When the JRF accepts public complaints, citizens must provide case files and documentation, upon which the JRF bases its individual evaluation requests. This approach applies equally to the oversight of both judges and prosecutors. Furthermore, because case files can be obtained, this method allows for a more meticulous and comprehensive analysis and argumentation of judicial and prosecutorial misconduct compared to past practices such as court observations, judicial evaluations, and not-guilty judgment analyses.

Nevertheless, individual evaluation requests also possess certain deficiencies and limitations in oversight. First, the statutory period for filing an evaluation request is two years, calculated from the moment the case leaves the hands of the subject being evaluated—a very short timeframe. Many citizens are reluctant to report misconduct before litigation concludes out of fear that it might impact the outcome of their trials. However, legal proceedings are time-consuming and prone to dragging on past the two-year mark, especially when reporting investigative prosecutors, making it very easy to exceed the evaluation request period. Furthermore, an evaluation request must meet the threshold of "severe circumstances" to be established, yet what constitutes "severe circumstances" is entirely at the discretion of the evaluation commissioners. As long as the threshold for so-called "severe circumstances" is raised, evaluation requests can be easily dismissed. Therefore, unless the Evaluation Commission conscientiously fulfills its oversight duties, evaluation requests filed by civil society groups will struggle to exert real supervisory impact.

Oversight Requires Continuous Methodological Improvement and Expanded Coalitions

The JRF's objective in overseeing judges and prosecutors is unequivocal. However, civil society's resources are inherently limited, and the JRF must invest its resources in effective oversight strategies, necessitating continuous review and improvement of its monitoring methods. Oversight is not intended to overthrow official authorities to take their place; as demonstrated by the preceding introduction, effective oversight requires both rallying public strength outside the system to generate pressure for reform, while simultaneously seeking cooperation with reformers within the system to catalyze change.

Therefore, we invite everyone—whether inside or outside the system—who cares about the quality of justice to join hands, propose effective oversight practices, and drive continuous reform!