Judges Act Amendment: How Far Is the Distance Between the Judiciary and Reform?

Recent amendments to the Judges Act have sparked major controversies within the legal community, with some even describing it as a civil war among legal professionals. As the Legislative Yuan struggled to reach a consensus, it recently decided to refer the bill to caucus negotiations. The controversy surrounding the Judges Act amendments essentially focuses on issues such as "the composition of the Evaluation Committee" and "whether legal opinions can be subject to evaluation." Furthermore, the draft bill proposed by Legislator Yu Mei-nu has naturally become a primary target of criticism from judges, prosecutors, defense attorneys, and academics alike. To state my conclusion first: I support Yu's draft.

Why Do Judges Evaluation Committees Need an External Majority?

Taking the Judges Evaluation Committee (hereinafter referred to as the JEC) as an example, under the current system, it is composed of 3 judges, 1 prosecutor, 3 attorneys, and 4 scholars and impartial members of society. If all non-judge members are regarded as external members, the ratio of internal to external members appears to be 3:8, meaning external supervision has long constituted a majority. However, this is nothing more than self-deception. In reality, the legal circle is extremely small; the educational and professional backgrounds of judges, prosecutors, attorneys, and scholars are identical, and they interact frequently in their work. No one wants to offend anyone else. The sycophantic culture of "leaving a way out for human relations so we can still get along in the future" has been entrenched for a long time and is not a malady of a single day.

Let us examine JEC Resolution No. 5 of the 107th year of the Republic (2018). In the resolution, the JEC severely reprimanded Judge Ho of the Taoyuan District Court for extorting confessions through detention (intimidating defendants that if they did not implicate the accomplices predetermined by the judge, they would be detained), conducting evidence investigations ex parte during preparatory proceedings in violation of the principle of oral proceedings, and confusing the roles of prosecutors and judges (failing to distinguish whether he was a prosecutor or a judge). The JEC deemed Judge Ho's illegal conduct to be extremely serious. Moreover, random sampling of his past criminal cases revealed that Judge Ho had long possessed the bad habit of conducting investigations in violation of the law. However, at the very end of the resolution, the tone abruptly shifted: the JEC concluded that because Judge Ho had never been disciplined before, had good performance evaluations, and should have been sufficiently warned through the evaluation procedure itself, disciplinary action was unnecessary.

Such severe illegal conduct infringing upon human rights has virtually decimated the "accusatorial principle," which is at the core of the criminal litigation system, directly dragging the system back to the "inquisitorial system" and severely undermining public trust in the judiciary. Yet, the JEC resolved that no disciplinary action was necessary. Can such a conclusion truly be accepted by the public?

Can Judges Not Be Evaluated by the Public?

Precisely because the JEC has been ridiculed for years as an institution where officials shield one another, the Judicial Yuan itself proposed a motion at the subgroup meetings of the National White-Collar Judicial Reform Conference: "Expand the number of members constituting the JEC, increase the number of external representatives who are scholars and impartial members of society, and strive for diversity and heterogeneity in their sources." This proposal received overwhelming approval at the meeting (supporters included judge representatives Lin Meng-huang and Lai Kung-li; Ministry of Justice representatives Chiu Tai-san and Ch'en Jui-jen; and prosecutor representative Lin Ta). It was hoped that by changing the composition of the JEC, the credibility of its resolutions could be won back.

Consequently, Yu's draft was designed accordingly: 1 judge, 1 prosecutor, 2 attorneys, 1 legal scholar, and 6 non-legal scholars and representatives of social groups who have long participated in judicial reform, human rights, public interest, or disadvantaged issues. Yet, critics readily attacked it with criticisms such as "tailor-made for evil organizations like the Taiwan Association for Judicial Reform" and "insufficient professionalism of external members." One must ask: after reading the structural design of Yu's draft provisions, must insiders in the legal circle continue to utter laymen's remarks that the Judicial Reform Foundation can manipulate everything? Furthermore, one must ask: under the upcoming lay participation system (國民參審制), the power of life and death over serious felony trials is entrusted to 3 professional judges and 6 non-legal personnel—a "far-over-majority." Why has no one questioned the professionalism of these lay judges? Moreover, judges evaluation merely determines whether to open the door to disciplinary action, rather than directly imposing discipline. This makes one wonder: is the public only qualified to judge ordinary people?

The Core of Adjudication Cannot Be Infinitely Expanded

As soon as Yu's draft was released, the legal community was in an uproar overnight. Critics raised high the banner of "protecting the core of adjudication" and voiced stern opposition. However, does Yu's draft really intend to bring legal opinions into the scope of evaluation? The draft provision states as follows: "Where a complaint merely points out errors in a judge's legal interpretation, it shall not be submitted for individual case evaluation. However, errors in subsumption between facts and law shall not be subject to this restriction." The text of the provision explicitly declares that legal opinions shall not be subject to evaluation. Meanwhile, the "errors in subsumption between facts and law" referred to in the proviso may not be easily understood by non-legal professionals, but reading the draft's explanatory notes makes it clear: "such as factual determinations clearly inconsistent with the evidence in the case file, misapprehension of disputed points, or making a contrary determination lacking the constitutive facts prescribed by statutory provisions." It is not difficult to understand that the targets of evaluation under Yu's draft are derelict judges who ignore case files, fabricate facts out of thin air, and create miscarriages of justice, rather than legal opinions.

Whether the phrasing of the above provisions is insufficiently meticulous, leading to the initial misapprehension that legal opinions are to be evaluated, may perhaps leave room for textual adjustment. However, an important concept must be clarified here first—the core of adjudication is not entirely untouchable!

It is true that the Constitution explicitly guarantees independent adjudication by judges, thereby giving rise to the so-called theory of the core domain of adjudication. This theory holds that a judge's conduct regarding procedural progression, evidence investigation, litigation direction, factual determination, adoption of legal opinions, and determination of legal effects all belong to the core of adjudication, and external supervision cannot intervene arbitrarily. However, so-called judicial independence and the core of adjudication are not "ends" in themselves, but rather "means." The true "purpose" of safeguarding judicial independence is to faithfully observe the commandment of the constitutional state—the protection of human rights. Therefore, Article 80 of the Constitution does not guarantee that judges shall adjudicate independently; rather, it guarantees that judges shall adjudicate independently "in accordance with the law." In other words, the pursuit of judicial independence or the safeguarding of the core of adjudication must be premised upon a vital precondition: that the adjudicatory activities conducted by judges comply with legal provisions. Otherwise, taking the aforementioned Judge Ho as a case in point, did the decision on whether to detain and how to investigate evidence not belong to the core of adjudication? Why then could this matter become subject to evaluation? If critics stubbornly insist that the core of adjudication can never be evaluated, then aside from opposition, where is the plan for self-reform?

Self-Discipline Is Freedom, Heteronomous Discipline Is Hell

The German philosopher Immanuel Kant once said, "Freedom is autonomy (Freiheit als Autonomie)." Indeed, if a person wishes to enjoy freedom, they must begin with self-discipline; through self-restraint and self-control, they can avoid falling into the hell of heteronomy. When self-discipline fails to flourish, heteronomous discipline follows. It has always been thus.

Whether judges or prosecutors, in the eyes of outsiders, they are rarely viewed as individual, independent entities, but are instead perceived as a shared collective fate. Consequently, the degree of self-discipline within this collective will be inversely proportional to the degree of heteronomous discipline it suffers. Under the design of the current Judges Act, 3 judges from the same court who deem a peer incompetent are actually qualified to refer that incompetent judge for evaluation. This is a system designed to achieve collective self-discipline through mutual restraint. Yet, what we witness is merely one rotten apple after another hiding in the porridge, while high-quality judicial personnel—either constrained by collegial sentiment or adopting a "to each his own" attitude—choose to turn a blind eye to these bad money driving out good, ultimately bearing the blame together.

The failure of the judicial branch's self-regulatory mechanism has caused the Judges Act—a statute intended for self-flagellation—to fall into a dormant state. This has evolved into lingering resentment among some judicial personnel toward the Control Yuan or civil judicial reform organizations, believing that these groups are perpetually nitpicking. Ultimately, when the waves of reform surge, aside from opposition, there is nothing but opposition, which can be described as having fallen into the hell of heteronomy without even realizing it.

As legal professionals, one certainly needs the unyielding backbone of not fearing darkness or scolding in order to undertake the judicial mission of countering majoritarianism. Yet, if one wishes to maintain even a shred of final dignity, one cannot help but constantly ask: "How far is the distance between the judiciary and reform?"

※ This article was published in ETtoday News Cloud on May 14, 2019