How Can the Law Be Amended to Let Shih Mu-Chin and Others Like Him Off the Hook?

Photo / January 18, 2021: Attorney Chiang Jung-Hsiang attends a press conference in the series monitoring the Shih Mu-Chin case.

The Judicial Yuan has proposed amendments to the Judges Act providing that the grounds for discipline, types of disciplinary measures, and other substantive rules are governed by the law "in force at the time of the conduct." If the Legislative Yuan adopts the amendment and it takes effect, the Disciplinary Court would be required to apply that rule in the Control Yuan's disciplinary case against Shih Mu-Chin. The governing substantive law would therefore be the former Civil Service Discipline Act in force when the conduct occurred, rather than the Judges Act in force when judgment is rendered. Because expiration of the period for exercising disciplinary authority has the substantive effect of barring further discipline, it would also fall within the draft's "other substantive rules." Shih's case could therefore escape discipline because the former law's ten-year period has expired. Other judges and prosecutors whose long-term improper contacts with businessman Weng compromised judicial impartiality could benefit as well.

The Judicial Yuan offers a principled-sounding justification: although judicial discipline is neither criminal punishment nor an administrative penalty, it still deprives or adversely affects a judge's status or property. Under the principle against retroactive legislation, the substantive rules governing misconduct should therefore be limited to those expressly in force when the unlawful or derelict conduct occurred.

As a general matter, legal certainty and protection of legitimate reliance mean that laws restricting or depriving rights should not apply retroactively to events already completed before the law took effect. Article 2, Paragraph 1 of the Criminal Code, for example, provides that where the law changes after an act is committed, the law in force at the time of the act applies. But retroactive legislation unfavorable to an affected person may still be constitutional when it pursues a compelling constitutional public interest and the claimed basis for reliance is itself incompatible with the liberal democratic constitutional order. Judicial Yuan Interpretation No. 793 recognized such an exception.

The Legislative Yuan enacted the Judges Act in 2011 and provided that conflicting provisions of other laws would cease to apply after the Act took effect. Unlike Criminal Code Article 2, the Judges Act did not create a separate rule governing changes in law after the conduct occurred. Its substantive provisions on grounds for discipline, disciplinary measures, and periods for exercising disciplinary authority operate as special rules in relation to the Civil Service Discipline Act. Once the Judges Act took effect in July 2012, those newer special provisions should therefore govern.

For an isolated, accidental, and relatively minor violation by a judge, a modest disciplinary measure such as a fine or reprimand serves a corrective and educational purpose only if imposed within a reasonable period after the conduct ends. If discipline comes too late, that educational function largely disappears. This is the rationale for limitation periods applicable to lighter disciplinary measures under the Judges Act.

A Tailor-Made Escape Clause?

The analysis is different when a judge has committed multiple unlawful breaches of statutory duty. In that situation, the judge's conduct should be assessed as a whole to determine whether the character revealed by the pattern of conduct is compatible with continued judicial office. If those breaches demonstrate a fundamental lack of fitness, measures such as removal from judicial office, dismissal, or transfer to another position are aimed at protecting the institution rather than simply punishing past conduct. The Judges Act therefore does not impose the same limitation period on those measures.

If evidence now brought into the open demonstrates that a judge committed serious misconduct more than a decade ago and is plainly unfit for office, allowing that judge to remain in lifetime tenure solely because of a rigid non-retroactivity theory would destroy public trust and undermine the normal operation of judicial power. Even misconduct predating the Judges Act should therefore be evaluated under the Act where necessary to serve the compelling public interest in maintaining confidence in and the functioning of the judiciary. Judges who collectively manipulated the rules, damaged judicial impartiality, and later obstructed investigation should not be permitted to shelter behind the mere passage of time; the reliance interest they invoke is not one the legal order should protect.

In mid-December, the Judicial Yuan released investigation results and was reported to have treated the "May 3 Judges' Ethics Rules" as a broad basis for declining further investigation, while also invoking expired periods for administrative discipline or supervisory measures to excuse some judges. It then proposed an amendment expressly requiring substantive rules to follow the older law. To critics, the sequence looks like a provision tailored to give the "Shih Mu-Chins" a complete way out. If the institution alone controls both the interpretation of ethical standards and the power to propose the governing law, that becomes a form of discursive monopoly. People already disadvantaged in the distribution of social and economic resources must at least be able to expect equal treatment in judicial proceedings. If even that cannot be secured, public anger at a wall built from money, influence, and judicial power should surprise no one.

※ Originally published in Apple Daily, February 1, 2021