Remarks by Ch'en Yao-hua—Press Conference on the Amendment to the Judges Act

Establishing an evaluation system within Taiwan's judicial system to weed out incompetent prosecutors and judges is no longer a question of "whether we should," but rather "how we should."

Under the evaluation system designed in the current Judges Act, the Evaluation Commission cannot proactively and directly request evaluations for specific cases. Instead, it can only passively and indirectly accept cases referred by courts, prosecutors' offices, bar associations, or civil organizations. If the Evaluation Commission determines that a prosecutor or judge involved in a complained-of case warrants disciplinary action, it can refer the case to the Control Yuan. If the Control Yuan also agrees on the necessity of disciplinary action, it must then submit the case to the Disciplinary Court for adjudication. Regardless of the final disposition by the Disciplinary Court, a case must go through at least four stages of proceedings, and every single stage must agree that the individual case warrants disciplinary action in order to achieve the goal of removal. Not only are the criteria for establishing a disciplinary case strict and the proceedings protracted, but for the applicant, every stage is opaque, merely accumulating growing public grievances.

Under the current system, in 2016, the Evaluation Commission received only 2 cases requested for evaluation by the Judicial Yuan, despite the fact that in that year, the Judicial Yuan received a total of 7,277 petitions from citizens regarding judges. In 2017, the number of cases requested for evaluation by the Judicial Yuan was 0, despite there being 6,489 petitions that year. The Ministry of Justice did not even publicize the number of petitions concerning prosecutors; it requested the evaluation of only 1 prosecutor in 2016 and 0 in 2017. In other words, the vast majority of cases are filtered out at the very first stage, with only a tiny fraction making it to the Evaluation Commission. Furthermore, among these four stages, the likelihood of non-legal professionals participating in evaluations is virtually nil, even though the design of the evaluation system emphasizes procedural transparency and the participation of socially impartial figures. The evaluation system for prosecutors and judges can at best be described as a form of systemic self-regulation. Moreover, judging by the number of cases that ultimately result in disciplinary action, it not only fails to function as a mechanism to weed out incompetent prosecutors and judges, but actually protects them from disciplinary measures.

Compared to the phenomenon of academics "protecting one another" within academia, the legal sector's evaluation system suffers from an even more severe "bureaucratic protectionism" and "players acting as referees." This is related to Taiwan's authoritarian period during the White Terror, where the law served as a tool for rulers to suppress dissidents. Although the Period of Mobilization for the Suppression of Communist Rebellion legal framework was abolished after the lifting of martial law, the democratization of Taiwan's legislative and executive branches has made weeding out incompetent governments and officials much easier than weeding out incompetent prosecutors and judges. Universal suffrage, transparent government, and robust civil oversight mechanisms are the key steps for the legislative and executive branches to achieve democratic reform. In contrast, the judicial system lags far behind in all three respects. The main reason remains that the operation of the judicial system is overly closed to the outside world, the professional training education exhibits high homogeneity, and legal insularity prevents the well-intentioned evaluation system from meeting the basic standards of fairness, transparency, openness, and public accountability.

For an evaluation system to be successfully implemented, it must rely on evaluators who are independent and objective, fair and responsible to both the complainant and the respondent, and free from conflicts of interest or predetermined stances. Beyond publishing the criteria deemed to warrant disciplinary action at every stage, this also requires simplifying procedures so that cumbersome processes do not become barriers to filing complaints. In particular, the fact that parties cannot directly submit cases to the Prosecutor or Judge Evaluation Committees, nor can they provide input regarding the defense submitted by the respondent during the evaluation process, renders the evaluation procedure neither transparent nor fair. Furthermore, if the Evaluation Commission and the Disciplinary Court remain monopolized by legal professionals, lacking the intervention and balance of diverse perspectives from impartial third parties to propose legal and ethical standards for prosecutors and judges that ordinary people can more easily understand and accept, the evaluation system will fail to be persuasive.

The intervention of impartial third parties is not meant to completely replace the self-regulation of legal professionals, but rather to provide broader and more diverse criteria for evaluation, making the standards of judgment more transparent and discerning. In a democratic nation, authority and responsibility must be commensurate. Prosecutors and judges wielding power without accountability, accumulating a massive volume of complaints, and leaving aggrieved parties with nowhere to turn represent a severe defect that should not exist in the judicial system of a democratic nation.