Shih Mu-Chin Case | Amicus Curiae Brief in Disciplinary Case No. 9 of 2020 (Part I)

Case No.: 109-Cheng-9 (2020)
Division: Yi
Statement Submitted by: Judicial Reform Foundation
Representative: Attorney Joseph Lin

1. Hear This Case in Open Court to Prevent Further Damage to Public Trust in the Judiciary

   On September 9, 2020, the Control Yuan released Investigation Report 109-Ssu-Tiao-0069 on the Shih Mu-Chin case, exposing long-term, structural, and systemic integrity problems within Taiwan's justice system. The report identified Shih Mu-Chin, former President of the Commission on the Disciplinary Sanctions of Functionaries; former Control Yuan member Fang Wan-Fu; former Tainan District Prosecutors Office prosecutors Chu Hung-Yu and Lo Jung-Chien; former Supreme Court judges Yen Nan-Chuan, Hua Man-Tang, and Hsieh Chia-Ho; former Supreme Administrative Court President Lin Chi-Fu; former Supreme Court Presiding Judge Wu Hsiung-Ming; former Taipei Investigation Station Mobile Unit Director Chin Tai-Sheng; senior National Police Agency officers Liu Po-Liang and Chou Yu-Wei; police officer Chiu Hsiu-Yueh; and others as having engaged in improper contacts, golf outings, banquets, stock transactions, or other improper dealings with businessman Weng Mao-Chung.

   The Judicial Yuan and Ministry of Justice later released their respective investigation reports on January 18, 2021. The reports were incomplete and even applied a standard under which conduct occurring fewer than five times could be treated as insufficiently serious for discipline, triggering public criticism that the institutions were protecting their own. Only after two days of criticism did both announce renewed comprehensive investigations. Weng's social and financial contacts extended beyond judges and prosecutors to police officers and investigation personnel. Although Premier Su Tseng-Chang ordered a thorough investigation, the National Police Agency had still not completed its report, while the Investigation Bureau's report was returned by the Control Yuan. The underlying events already amounted to one of the most serious judicial-integrity scandals of the past two decades; the responses of the responsible agencies further damaged public confidence. Because many of the judicial personnel involved had held senior positions, rank-and-file judges and prosecutors also publicly demanded a full investigation.

   As to Shih Mu-Chin himself, the Control Yuan impeached him on August 14, 2020 and referred the case to this Court. After a judicial-integrity scandal, the way the responsible institutions investigate and address misconduct is critical to preventing a second injury to public trust. If the case is heard behind closed doors and favorable and unfavorable evidence alike are kept from public scrutiny, confidence in the judiciary may be damaged further. JRF therefore respectfully requests that the Court of the Judiciary order the Shih Mu-Chin proceedings to be open to the public.

2. The Court of the Judiciary Has the Authority-and the Responsibility-to Hear the Case Publicly Under the Judges Act

   Article 57 of the Judges Act provides that proceedings before the Court of the Judiciary are ordinarily closed, but permits a public hearing when the Court considers openness necessary or when the judge referred or sued requests it. In other words, although non-public proceedings are the default, the Court has express authority to order an open hearing whenever it finds that doing so is necessary.

   Since the Court of the Judiciary was established in 2012, it has never on its own initiative ordered proceedings to be opened, reflecting a highly conservative understanding of when publicity is "necessary." By contrast, Article 44 of the Civil Service Discipline Act, as amended in June 2019, abandoned the old presumption of closed proceedings and provides that disciplinary cases involving ordinary civil servants are generally heard in open court, subject to limited exceptions. If ordinary civil-service discipline is now presumptively public, proceedings concerning judicial discipline should be at least as open and transparent. 

   Shih Mu-Chin held numerous senior judicial positions and should have served as a model for other judicial personnel. Instead, the conduct at issue seriously damaged the judiciary's reputation for integrity. If even this case does not satisfy the standard of "necessity" for a public hearing, it is difficult to imagine what case would. Article 57 of the Judges Act therefore gives the Court of the Judiciary both the authority and ample reason to open these proceedings.

   The Judicial Yuan's January 2021 draft amendments to the Judges Act point in the same direction. The draft would reverse the current presumption and make proceedings before the Court of the Judiciary public in principle, permitting closure only in specified circumstances-for example, where publicity would risk harming public morals, the underlying proceeding is confidential by law, legally protected secrets are involved, or a party requests closure and the court grants the request. The proposed reform further demonstrates that there is no compelling reason for the Court of the Judiciary to continue treating secrecy as the norm.

   Even if closed proceedings may sometimes be justified to protect the judiciary's institutional reputation or a judge's personal reputation, that rationale is strongest when the disciplinary allegations concern a judge's case management or exercise of adjudicative authority in an individual proceeding. Where the allegations instead concern corruption or serious judicial-integrity misconduct, public proceedings are even more important: openness demonstrates that the judiciary will not protect its own and that it is committed to maintaining ethical standards.

   For these reasons, JRF respectfully requests that the Court order the Shih Mu-Chin case to be heard publicly in order to preserve the credibility of the judiciary.

February 4, 2021

Statement Submitted by: Judicial Reform Foundation
Representative: Attorney Joseph Lin