Public Hearings as the Rule for Judge and Prosecutor Disciplinary Cases-JRF Statement on the Judicial Yuan's Proposed Judges Act Amendment

Last Tuesday, August 17, the Judicial Yuan approved draft amendments to the Judges Act providing that disciplinary cases involving judges and prosecutors before the Disciplinary Chamber of the Judiciary will, as a rule, be heard in public, subject to specified exceptions. Members of the public would therefore be able to observe the proceedings and scrutinize how disciplinary cases against judges and prosecutors are adjudicated.

1. The Judicial Yuan's proposal to make public hearings the rule in the Disciplinary Chamber of the Judiciary deserves support

The JRF has consistently supported public proceedings before the Disciplinary Chamber of the Judiciary and previously called for the Shih Mu-Chin case to be heard openly. We therefore welcome the Judicial Yuan's proposed direction. When judicial personnel are accused of serious misconduct and face discipline, the public has a legitimate interest in understanding the adjudicative process, and openness can strengthen confidence in the judiciary. We hope the amendment passes the Legislative Yuan smoothly. Until then, we also urge the Disciplinary Chamber of the Judiciary to respond to public expectations by ordering public hearings in appropriate disciplinary cases.

2. The exceptions permitting closed hearings still require further refinement

Although we support making public hearings the general rule, we have concerns about the proposed exceptions:

(1) The Judicial Yuan draft would permit closure where "the procedure for handling the underlying individual case is non-public by law." This could make disciplinary proceedings involving family matters, juvenile matters, or sexual-assault cases automatically non-public. We agree that sensitive information from such underlying cases may require protection. But a disciplinary case concerning a judge's or prosecutor's misconduct will not necessarily disclose that information. For example, where the issue is whether a judge used abusive language or poor courtroom conduct that interfered with a litigant's procedural rights, the disciplinary proceeding may still be heard publicly if sensitive details of the underlying case are not revealed. The Disciplinary Chamber should therefore assess each case individually and close proceedings only when disclosure would create a genuine risk to privacy, public order, or good morals, rather than treating the entire category as automatically non-public.

(2) The Judicial Yuan draft would also permit closure whenever "a party requests a non-public hearing and the court grants permission." Without clearer limits on the permissible grounds for closure or consistent standards, this exception risks swallowing the rule of public proceedings.

To address these concerns, the JRF prepared a civil-society version of the proposed amendment, compared below with the Judicial Yuan version.

Comparison of Proposed Amendments to Article 57 of the Judges Act

Civil Society Proposal	Judicial Yuan Proposal	Rationale for the Civil Society Proposal
Article 57 Proceedings before the Disciplinary Chamber of the Judiciary shall be conducted in open court. However, the court may order the proceedings closed in any of the following circumstances: 1. There is a risk of harm to national security. 2. There is a risk of harm to public order or good morals. 3. The privacy or trade secrets of a party or third party are involved, the party or third party requests a closed hearing, and the court considers closure appropriate.	Article 57 Proceedings before the Disciplinary Chamber of the Judiciary shall be conducted in open court. However, the court may order the proceedings closed in any of the following circumstances: 1. There is a risk of harm to good morals. 2. The procedure for handling the underlying individual case is non-public by law. 3. The matter involves information that the law requires to be kept confidential. 4. A party requests a closed hearing and the court grants permission.	1. To make adjudication more transparent and strengthen public confidence, public hearings should be the rule. 2. Subparagraphs 1 and 2 of the proviso in the civil-society proposal draw on the following provisions: Article 86 of the Court Organization Act: "Oral arguments and the pronouncement of judgments shall be conducted in open court. However, where there is a risk of harm to national security, public order, or good morals, the court may order otherwise"; Article 44 of the Public Functionaries Discipline Act: "Proceedings before the Disciplinary Court shall be conducted in open court. However, proceedings may be closed where there is a risk of harm to national security or where a party requests closure and the court grants permission ..."; Article 195-1 of the Code of Civil Procedure: where a party's means of attack or defense involves the privacy or trade secrets of a party or third party, the court may, upon a party's request and when it considers appropriate, close the hearing; Article 14 of the Trade Secrets Act: where a party's means of attack or defense involves trade secrets, the court may, upon a party's request and when it considers appropriate, close the hearing or restrict access to the case file. These provisions support express exceptions for national security, public order, and good morals. 3. The third exception in the civil-society proposal is designed to prevent a broad catch-all clause from hollowing out the principle of public proceedings. Drawing on Article 195-1 of the Code of Civil Procedure and Article 14 of the Trade Secrets Act, closure would require all three elements: the case involves protected privacy or trade secrets; a party or third party requests closure; and the court considers closure appropriate. Because a person who petitioned for an individual judge or prosecutor evaluation may not be a party to the later disciplinary case, the proposal expressly allows a third party to request closure when necessary to protect that person's rights.

We offer these proposed amendments for public reference and hope the draft will be further improved through full deliberation once it reaches the Legislative Yuan.

Press Contact

Lu Cheng-Yen, Staff Attorney, Judicial Reform Foundation
Phone: 02-2523-1178#37
Email: elvin@jrf.org.tw