Q&A on the Controversy Surrounding the NGO Draft Amendments to the Judges Act

Some judges and prosecutors have questioned whether volunteer lawyers participating in the Judicial Reform Foundation (JRF) can "take on cases and make a fortune" after serving as evaluation committee members. They also question whether judges and prosecutors might grant "special treatment" to JRF lawyers when they handle their respective commissioned cases in routine practice.

Evaluation committee members do work that offends judges and prosecutors. Parties to a case, in their pursuit of winning, would never dare to offend judges and prosecutors; thus, serving as an evaluation committee member is more harmful than beneficial to a lawyer's case acquisition and income.

Some judges and prosecutors have questioned Attorney Huang Hsü-t'ien, a member of the 4th Judges Evaluation Committee and also a member of the JRF. In fact, according to the current provisions of the Judges Act, lawyer representatives on the Judges Evaluation Committee are separately nominated (1 to 3 persons each) by local bar associations and then elected through a nationwide ballot organized by Taiwan Bar Association. In reality, Attorney Huang Hsü-t'ien was nominated by the Taipei Bar Association, elected through a nationwide lawyer vote, and ultimately participated in judicial evaluation in the capacity of a "lawyer representative." He was neither nominated by the JRF nor did he represent it. Furthermore, evaluation committee members are subject to mutatis mutandis application of recusal norms under procedural laws; therefore, it is completely impossible for them to gain any personal advantage in their own commissioned cases by participating in evaluations.

The JRF has long monitored judges and prosecutors and often publicly criticizes them. Likewise, judges and prosecutors frequently offer public critiques of the JRF. Amid such an atmosphere of mutual oversight, it is truly hard to imagine how JRF lawyers could receive any "special treatment" in court. Nevertheless, if any judge or prosecutor has indeed granted "special treatment" to JRF members, we welcome concrete individual cases to facilitate review and improvement.

Will the NGO draft's reform of the evaluation committee design—introducing a structure of "full-time permanent members & increasing the majority of seats"—allow JRF members to flood into the evaluation committee and monopolize judicial evaluations through a majority voting advantage?

Draft Article 33
The Judges Evaluation Committee shall be composed of one judge, one prosecutor, two lawyers, one legal scholar, and six non-legal scholars and representatives of social groups who have long participated in judicial reform, human rights, public interest, or disadvantaged issues.
The composition of the committee in the preceding paragraph shall ensure that neither gender accounts for less than one-third.
The Judges Evaluation Committee shall have five full-time members, consisting of three non-legal scholars and social group representatives, one lawyer, and one legal scholar.
The Judges Evaluation Committee shall have one convener, who shall be elected by all members from among the five full-time members.
The rank of full-time members shall be equivalent to Senior Grade Thirteen, and the convener shall be a specially appointed official; both shall be appointed by the President upon the nomination of the President of the Judicial Yuan.
The recusal of evaluation committee members shall be governed mutatis mutandis by the provisions concerning the recusal of judges under the Administrative Litigation Act.

Under the design of the NGO draft, the 11-member Judges Evaluation Committee is jointly composed of 6 part-time members and 5 "full-time members." Among the 5 full-time members, there is 1 legal scholar, 1 lawyer, and 3 non-legal scholars and social group representatives (restricted to non-legal professionals). One of these five is further elected as the convener and appointed by the President upon the nomination of the President of the Judicial Yuan.

The purpose of establishing full-time members is to cope with "citizens directly requesting evaluations," as well as the fact that the evaluation committee will be responsible not only for individual case evaluations but also for comprehensive evaluations. This will inevitably substantially increase the workload of the committee. Given that current evaluation committee members all serve concurrently on a part-time basis, in order to enhance the committee's functions, 5 full-time members are established so that they can dedicate themselves exclusively to accepting citizens' evaluation requests and conducting comprehensive evaluations.

Will the addition of full-time committee members lead to the JRF monopolizing evaluation resolutions? Impossible. Aside from the fact that the convener of the Judges Evaluation Committee must be elected among the members and then appointed by the President upon the nomination of the President of the Judicial Yuan, the 11 evaluation committee members are produced through diverse channels. Taking "lawyer representatives" as an example, they are individually recommended (1 to 3 persons each) by local bar associations and subsequently selected through a nationwide lawyer ballot organized by the national lawyer organization. "Legal scholars" are separately recommended by the Ministry of Justice and the national lawyer organization, after which they are submitted to the President of the Judicial Yuan for selection and appointment. The six "non-legal scholars and social group representatives" are selected by a selection committee—itself nominated by the Legislative Yuan—from a list of recommendations submitted by social groups, following a period for public comments. All of the above representatives are produced through dual selection mechanisms. It is fundamentally impossible for the JRF to control the selection committee's process. Furthermore, JRF members are almost entirely legal professionals; they could never exceed a majority of the committee members, making scenarios of a "JRF monopoly on evaluation resolutions" non-existent.

Why did the NGO draft abandon the design of having evaluation committees served by "socially impartial figures" and instead change it to "six non-legal scholars and representatives of social groups who have long participated in judicial reform, human rights, public interest, or disadvantaged issues"?

Draft Article 34, Paragraph 1 and Paragraph 2
Judges Evaluation Committee members shall serve a term of two years and may be reappointed once. Their selection methods are as follows:
1. Judge representatives shall be elected by all judges.
2. Prosecutor representatives shall be elected by all prosecutors.
3. Lawyer representatives shall be individually recommended by local bar associations (one to three persons each), followed by a nationwide lawyer ballot organized by the national lawyer organization.
4. One legal scholar shall be separately recommended by the Ministry of Justice and the national lawyer organization, and submitted to the President of the Judicial Yuan for selection and appointment.
5. Non-legal scholars and social group representatives shall be recommended by social groups as non-legal scholars and social group representatives who have long participated in judicial reform, human rights, public interest, or disadvantaged issues, and submitted to the selection committee for selection and appointment.
The selection committee referred to in subparagraph 5 of the preceding paragraph shall be composed of eleven to fifteen socially impartial figures nominated by the Legislative Yuan. The selection committee shall publicly announce double the statutory quota of candidates for evaluation committee members under subparagraph 5 of the preceding paragraph, accept opinions from all sectors, and then make a decision through the selection committee.

Regarding the members of the "Judges Evaluation Committee," under actual operation, the four representatives currently designated as "socially impartial figures" have almost invariably ended up being filled by legal scholars, failing to break away from the insularity and mutual protection among legal professionals.

Therefore, the NGO draft is designed so that the committee is jointly composed of 5 individuals with a legal background (a judge, a prosecutor, two lawyers, and a legal scholar) and 6 non-legal scholars and social group representatives (non-legal professionals), giving non-legal professionals the majority. This is intended to reflect the voices of all strata of society and the structural issues of community diversity. By restricting the qualifications of the six "non-legal professional" social group representatives and non-legal scholars to those who have "long participated in judicial reform, human rights, public interest, or disadvantaged issues," the draft aims to bring diverse perspectives and the hardships ordinary citizens encounter in courtrooms into the discussion process of evaluation cases, drawing upon these groups' routine experience in assisting the public.

The six non-legal scholars and social group representatives are designed in the NGO draft to be produced through a two-stage selection process. In addition to the aforementioned qualification restrictions, a selection committee composed of 11 to 15 "socially impartial figures" nominated by the Legislative Yuan will be formed. Subsequently, out of the recommendation lists submitted by social groups, the selection committee will choose 12 candidates to be publicly announced. After accepting opinions from all sectors, the final 6 candidates will be determined.

In short, this means selecting committee members who meet the criteria of "having long participated in judicial reform, human rights, public interest, or disadvantaged issues" through "socially impartial figures," thereby engaging in judicial evaluation resolutions via "external oversight."

Both local bar associations and the JRF are entities eligible to petition for evaluations, but why does the NGO draft only prohibit personnel related to bar associations from serving as evaluation committee members while failing to prohibit JRF members from doing so?

Draft Article 34, Paragraph 3
Persons under any of the following circumstances shall not serve as members referred to in Paragraph 1:
1. Current presidents and presidents who have stepped down within three years of courts and their branch courts at all levels.
2. Current chief prosecutors and chief prosecutors who have stepped down within three years of prosecutors offices attached to courts and their branch courts at all levels.
3. Current chairpersons and secretaries-general, as well as those who have stepped down within three years, of national lawyer organizations and local bar associations.
4. Current chairpersons, chairpersons of the board, executive officers, and secretaries-general, as well as those who have stepped down within three years, of the groups referred to in Article 35, Paragraph 1, Subparagraph 5.
5. Public servants other than those in subparagraphs 1 and 2 of the first paragraph. However, teaching and research personnel of public schools and academic research institutions at all levels are excluded.
6. Political party caucus and party affairs workers.

The NGO draft prohibits current and recently stepped-down (within three years) "chairpersons and secretaries-general" of bar associations from serving as committee members because bar association chairpersons and secretaries-general are the primary decision-makers of their associations. Once they step down, it would likely be difficult for them, during their tenure as evaluation committee members, to put forth positions contrary to those they held while serving as key decision-makers in bar associations.

The JRF, much like bar associations, is an evaluation-petitioning entity. Similar restrictions also apply to such entities, including the JRF—specifically under Article 34, Paragraph 3, Subparagraph 4, which covers "current and recently stepped-down (within three years) chairpersons, chairpersons of the board, executive officers, and secretaries-general of the groups." The rationale is identical: these individuals are primary decision-makers of social groups, and the regulations governing those who have stepped down should be the same as those for bar association personnel.

Therefore, it is not true that there are no restrictions on personnel from evaluation-petitioning entities including the JRF; rather, the restrictions are identical to those for bar association personnel, targeting key decision-makers to limit them from serving as evaluation committee members.

Will the NGO draft's inclusion of "errors in subsumption between facts and law" as a ground for citizens to petition for the evaluation of judges and prosecutors create an almighty, unaccountable "super-supreme court" sitting above the relief procedures of the current litigation system?

Draft Article 30, Paragraph 2
Mere criticisms pointing to errors in a judge's legal interpretation shall not be submitted for individual case evaluation. However, errors in subsumption between facts and law shall not be subject to this restriction.

First, it must be clarified that evaluating judges for errors in "legal interpretation" is also opposed by the JRF.

However, "subsumption" and "legal interpretation" are not the same thing. For example, whether the crime of forced obscenity necessarily requires physical contact is a matter of "legal interpretation." On the other hand, when a judge relies on evidence in the case file, such as surveillance video footage and witness testimonies, to explain which actions of the defendant constituted physical contact, that is a matter of "subsumption."

So what constitutes a subsumption error? It is absolutely "not" saying that a judge is wrong for adopting the "touching-required theory" at that moment. Rather, it is an error in subsumption when the facts determined by the judge obviously do not match the evidence in the case file, or when facts irrelevant to the legal provision are dragged into the discussion during conviction. In other words, a judge may acquit or convict in a case involving no physical contact; this falls within the scope of independent adjudication where judges adopt different legal interpretations. But when a judge describes "eye contact" as "physical" contact, or creates some irrelevant conditions—such as the duration or intensity of the touching—and states that "because the touching was not long enough or strong enough, it does not count as touching," this ceases to be a question of "legal interpretation" and becomes a question of a "subsumption error."

At this point, alongside the original litigation relief system, the handling quality of judicial officers who commit gross subsumption errors also needs to be subject to oversight. Evaluating such conduct is by no means interfering with the judiciary; it is simply demanding basic judicial quality.

Since both the Judicial Yuan draft and the NGO draft already enable citizens to directly petition the evaluation committee for evaluations, why does the NGO draft still insist that "civilian organizations" should serve as subjects capable of petitioning for evaluations?

Draft Article 35, Paragraph 1
When a judge is under any of the circumstances in Article 30, Paragraph 2, the following personnel, authorities, or groups may, when they deem an individual case evaluation necessary, petition the Judges Evaluation Committee to conduct an individual case evaluation:
1. Parties to the case, crime victims, witnesses, expert witnesses, defense counsels, agents, assistants, and other persons actually participating in the proceedings.
2. Three or more judges belonging to the same authority as the evaluated judge.
3. The prosecutors office corresponding to the authority, higher-level authority, or court to which the evaluated judge belongs.
4. Bar associations, certified public accountants associations, patent attorneys associations, or national bar associations, national certified public accountants associations, and national patent attorneys associations of the jurisdiction where the court of the evaluated judge is located.
5. Foundations or public interest-oriented associations incorporated as legal persons that have been permitted to be established for more than three years, with a registered total property of NT$10 million or more for foundations, or 200 or more members for associations, whose routine operations are related to the exercise of judicial functions, and which have been permitted by the competent authority of the target enterprise to petition for individual case evaluations.

The authorities and groups currently capable of accepting and assisting citizens in submitting evaluation petitions under the Judges Act include "courts," "prosecutors offices," "bar associations," and "civilian organizations." Observing the statistics of individual case evaluation petitions for judges and prosecutors over the years, individual case evaluations proposed by the JRF account for 65% of the total cases received by the Judges Evaluation Committee, and an even higher 88% of the total cases received by the Prosecutors Evaluation Committee. These figures prove that the intervention of civilian oversight mechanisms is the key to the smooth operation of individual case evaluations.

However, the Judicial Yuan's draft deliberately deletes the qualification of "civilian organizations" to petition for evaluations. This means people's organizations headed by the JRF will lose their qualification to petition for individual case evaluations of judges and prosecutors after the legal amendment, raising doubts as to whether official authorities intentionally intend to weaken oversight power.

What we worry about even more is that vulnerable and helpless parties to cases (such as migrant workers and debt-crisis victims) and crime victims who are unwilling to be exposed (such as victims of sexual assault), if left without the assistance of civilian organizations in the future, will likely be too afraid of public authority to step forward, or simply lack the capacity to petition for individual case evaluations—let alone participate in complex and professional evaluation procedures.

Moreover, in certain major judicial integrity cases (such as former Prosecutor-General Huang Shih-ming's leaking of secrets and Judge Ch'en Hung-pin's sexual harassment case), had the JRF not proactively proposed evaluations in the capacity of a petitioner, these judges' and prosecutors' actions would never have had the opportunity to enter evaluation procedures to examine whether they violated the law. Therefore, we advocate that the mechanism allowing civilian organizations to petition for evaluations should still be retained.