Comments on the Amendment to the Regulations for the Implementation of Evaluations by the Judges Evaluation Committee

Recipient: Department of Judicial Administration, Judicial Yuan
Date of Issue: April 13, 2020
Doc. No.: Si-Gai-Zi No. 109059
Speed: Urgent
Classification and Declassification Conditions or Period of Confidentiality: Attachments:

Subject: Comments on the draft amendment to the "Regulations for the Implementation of Evaluations by the Judges Evaluation Committee," as detailed in the explanation. Please review and respond.

1. In accordance with the Judicial Yuan's Official Document Yuan-Tai-Ting-Szu-I-Zi No. 1090006804 dated March 27, 2020, our comments on the draft amendment to the "Regulations for the Implementation of Evaluations by the Judges Evaluation Committee" are as follows.

2. Paragraph 2, Article 2 of the draft amendment stipulates: "Where a request for individual judge evaluation fails to comply with the procedures prescribed in the preceding paragraph, the Committee may not order a correction." The stated rationale is to "prevent abusive requests and the waste of limited administrative resources." However, based on our foundation's years of experience in handling public grievances, the most efficient way to prevent abusive requests is to assist the public in preparing the required procedural documents for individual judge evaluations upon their initial filing, and to guide them in fully presenting substantive evidence and legal arguments.

   The approach of dismissing cases directly without ordering corrections under the draft amendment may seemingly enhance screening efficiency. In reality, according to Article 16 and its accompanying explanation in the draft amendment to the Enforcement Rules of the Judges Act, if a request for individual judge evaluation fails to meet the procedural requirements of Paragraph 3, Article 35 of the Act and the Judges Evaluation Committee resolves not to submit the case for evaluation, the requester may re-file the request after completing the requirements, which is not restricted by the principle of res judicata. Cases dismissed directly without ordering corrections will still result in repeated filings by the public, thereby paradoxically wasting administrative resources.

   Furthermore, Article 10 of the draft amendment stipulates: "The judge under evaluation may, within the time limit prescribed in the first paragraph, request by oral or written statement to make an oral presentation before the committee in lieu of submitting a written statement." Since professional judges are permitted to make oral statements in lieu of written opinions, such user-friendly services should all the more be provided to non-professional citizens to lower the threshold for requesting individual judge evaluations. Therefore, our foundation suggests revising Paragraph 2, Article 2 of the draft amendment as follows:

   "Where a request for individual judge evaluation fails to comply with the procedures prescribed in the preceding paragraph, the Committee shall first set a time limit and order a correction. The requester may, within the time limit for correction, request by oral or written statement to make an oral presentation before the committee in lieu of submitting a written correction. Those who fail to make corrections within the time limit shall be subject to a decision of dismissal or a resolution not to submit for evaluation."

3. Subparagraph 5, Paragraph 3, Article 6 of the draft amendment stipulates: "Where procedural review conducted pursuant to Paragraphs 1 to 3 of Article 4 has not yet concluded," the Judges Evaluation Committee may restrict or refuse requests to inspect, transcribe, photocopy, or audio/video record the information obtained through investigation. However, based on our foundation's years of experience in handling public grievances, the public is often unable to obtain court audio/video recordings or litigation files required for their grievances, and must acquire them through the investigation of the Evaluation Committee before applying to inspect the files to supplement their opinions. To permit restrictions or refusals of the public's requests to inspect files and obtain investigative evidence during the preliminary review by dedicated personnel and the procedural review stage of the review panel is tantamount to depriving the public of their right to procedural participation during the review stage.

   Paragraph 4, Article 41-1 of the Judges Act safeguards the public's right to inspect information obtained through investigation, and explicitly defines the grounds upon which the Judges Evaluation Committee may restrict or refuse public inspection: "1. Drafts intended for internal use prior to the resolution of an individual judge evaluation case. 2. Preparation or deliberation documents for the resolution of an individual judge evaluation case. 3. Necessity to protect the legitimate rights and interests of third parties. 4. Other necessities for confidentiality pursuant to law or based on the public interest." Subparagraph 5, Paragraph 3, Article 6 of the draft amendment is not among the aforementioned four exceptions, thereby clearly exceeding the scope of statutory authorization and imposing restrictions not provided for by law. Therefore, our foundation suggests that Subparagraph 5, Paragraph 3, Article 6 of the draft amendment should be deleted.

4. Article 7 of the draft amendment stipulates: "When deliberating an individual judge evaluation case, the Committee may, when necessary to ascertain the pattern of disciplinary breaches or when it is known that the judge under evaluation has committed other circumstances subject to evaluation, concurrently investigate and deliberate upon disciplinary circumstances not covered by the request. In the circumstances of the preceding paragraph, the judge under evaluation shall be notified and given the opportunity to present their opinions." The rationale is to align with the legislative amendment of Paragraph 6, Article 35 of the Judges Act, which expands the investigative powers of the Evaluation Committee. While the procedural rights of the judge under evaluation certainly need to be safeguarded when expanding the scope of investigation to other unrequested, connected, or similar types of disciplinary circumstances, the procedural rights of parties and crime victims in other cases equally require protection. Therefore, our foundation suggests adding a third paragraph to Article 7 of the draft amendment, reading as follows:

   "In the circumstances of the first paragraph, the parties or crime victims in connection with other unrequested, connected, or similar types of disciplinary circumstances shall be notified and given the opportunity to present their opinions."

5. Article 12 of the draft amendment stipulates: "Where an individual judge evaluation case is decided not to be accepted by the Committee pursuant to Paragraph 5 of Article 4 or Article 9, the requester shall be notified in writing, and reasons may be omitted." However, the requirements for non-acceptance are explicitly stipulated in Paragraph 4, Article 35 of the Judges Act: "Where a request for an individual judge evaluation falls under any of the following circumstances, the Judges Evaluation Committee shall decide not to accept it: 1. It lacks concrete content or fails to state the true name or address. 2. Based on the same grounds, it is repeatedly requested after the Judges Evaluation Committee has already resolved not to submit it for evaluation." When an individual judge evaluation is decided as non-acceptance by the review panel or the handling commissioner, the statutory provision and subparagraph basis must be listed, specifying the ground for non-acceptance as "lacking concrete content" or "failing to state the true name or address." If the ground for non-acceptance is that "based on the same grounds, it is repeatedly requested after the Judges Evaluation Committee has already resolved not to submit it for evaluation," the reference number of the previous resolution not to submit for evaluation must be listed as proof. Therefore, our foundation suggests revising the text of Article 12 of the draft amendment as follows:

   "Where an individual judge evaluation case is decided not to be accepted by the Committee pursuant to Paragraph 5 of Article 4 or Article 9, the requester shall be notified in writing, which may only state the applicable statutory provisions and subparagraphs, the type of grounds, and the reference number of the previous resolution not to submit for evaluation."

6. Our revision comments are as stated above. We sincerely hope they will be adopted, and we suggest that Your Yuan hold a public hearing to broadly gather opinions from all sectors to facilitate the promotion of the new Judges Act.