C.V. Chen. “Judiciary of the People” in Taiwan. China Times

May 27, 2013

Last week President Ma completed the first year of his second term in office. I had high expectations for this president, a “legal professional” who once served as the Minister of Justice. For the past five years, through several articles such as “President Ma’s Judicial Exam,” “Shouldering the Responsibility for Judicial Reform, Expectations for the President with a Legal Background,” etc., I have expressed the hope that during his term there would be substantial progress in judicial reform. We rejoice that the gears of reform are moving forward, for example, the increase in conviction rate, the enactment of the “Speedy Trial Act” and “Judges Law,” the experiment with a citizen observer jury system, and the bar examination system for government lawyers, etc.; but in terms of old structural issues with the judiciary that have been accumulating over a long period of time, gradual alterations which only address the superficial issues are indeed insufficient. The president must make bolder efforts to promote a user-oriented judicial reform that addresses the root causes of the problems.

For the past ten years, I have had opportunities to exchange ideas about transnational legal issues with young students who are judicial officers. Facing this group of legal elites, looking at them fully immersing themselves in legal work brimming with hopes for the future, on the one hand, I feel happy for them that they are about to launch their careers. On the other hand, my heart is filled with concern. At the beginning of my class, I always suggest that my students switch to private practice as lawyers after serving as judges or prosecutors for a period of time, so as to avoid becoming ignorant and believing oneself to be infallible. Otherwise, not only does this attitude obstruct one’s ability to mature, it is also detrimental to increasing the people’s faith in justice. At the same time, I recommend even more strongly that after working as a lawyer for a period of time they return to a position of judicial officer to inject new life into the closed-off judicial system. These words, personally given to my students as career suggestions, but are more broadly intended to promote the evolution of judicial reform. I always hope that I do not have to repeat the same opening remarks as I already have for a decade, but the results of judicial reform clearly are limited and my hopes always meet with disappointment.

After martial law was lifted in 1987, our country’s constitutional governance gradually got on the right track. The country marched from “rule by law” towards the “rule of law.” The constitutional principles that demand the separation of the prosecutorial and the judicial system as well as judicial budgetary independence have effectively restricted the improper influence of the executive branch on the judiciary. However, judicial independence does not mean the judiciary is entering a brilliant future with great prospects. To establish credibility with the administration of justice, the quality and efficiency of trials and prosecution must be bolstered. This requirement has not yet been fulfilled and it still has a long way to go to meet people’s expectations.

To continue the unfulfilled undertaking to reform the judiciary by the former President of the Judicial Yuan, Shih Chi-yang, Shih’s successor, Weng Yueh-sheng convened a judicial reform conference in 1999, proposing the “judiciary for the people” idea in order to achieve two goals- foster a reasonable trial environment and protect the fairness and integrity of litigation. In addition, he formulated the blueprint for transforming the court structure. However, fifteen years have passed by since the conference, and Taiwan has gone through its second change in ruling parties, and yet judicial reform still moves along slowly. Part of the reason comes from resistance within the judicial system. Another part lies in its failure to coordinate with the legislative branch; as a result, related laws like the Judicial Yuan Organization Law, the Court Organization Law, the Constitutional Procedural Law, etc. have all not yet been passed, which causes reforms to bottleneck. An additional factor includes the cultivation of legal talent. The Judicial Yuan cannot single-handedly reform legal education and the qualification and training of legal professionals. The related branches of the Executive Yuan and the Examination Yuan must work together to provide impetus for judicial reforms.

Casually bringing up a convenient example, the possibility of having a retrial of the “Taitang case” evokes criticism that judges lack societal experience, resulting in errors in their determination of facts.* Their reasoning is also criticized as being insufficient. In addition, the Taichung High Court, relying on the same evidence, previously ruled in the final judgment that the defendants were conclusively guilty and should be severely punished. However, they just determined that there was still important evidence to be considered and they permitted a retrial (not to mention the retrial that will be conducted later on). This makes people puzzled as to the courts’ standards of determination.

One must be aware that under the modern rule of law, people are no longer objects subject to judicial process; rather they are the “principals” in the process. To put it simply, people are the “users” of the judicial system. There must be a judicial system that amply obtains the people’s trust in order for the rule of law to possibly take shape. A system that is strongly bureaucratic cannot promptly improve its functioning, and cannot amply respond to users’ demands. Besides that, it will greatly discourage young legal professionals and wantonly consume their mental and physical efforts. What is even more important is that the unnecessary sacrifice of people’s rights and interests will inevitably inflict heavy damage on people’s trust in the government. Nowadays, we emphasize putting people’s (customer’s) needs first and provide quality service. How can we continue with half-hearted judicial reform?

President Ma’s style of not interfering with concrete cases is worthy of esteem, but as for matters like judicial structural problems, President Ma must go beyond respect for the judicial system and take an active attitude in leading the path to reform. Therefore, I urge President Ma to take advantage of the three remaining years in his term to accomplish complete structural reform! Judicial reform must start from legal education reform and cannot neglect areas such as the judicial exam, the integrity of the judicial system, transformation of court organization, and government lawyers. If joint efforts on judicial reform can be made by inspiring people across government branches (the judiciary, the executive branch, the examination authorities and the legislature), across sectors (courts, prosecutors, the defense and the civil society) and across professions (the academia, the judiciary and lawyers), judicial reform will be renewed and will obtain the people’s trust. (The author is a law professor and lawyer.)

*The “Taitang case” refers to the conviction of several executives in the Taiwan Sugar Corporation accused of selling land, without government permission, well below market value.  See http://www.taipeitimes.com/News/front/archives/2013/03/14/2003557024

This article was originally published on May 27, 2013 in the China Times. The Chinese version of this text can be found here. The translator for this piece was Michael P. Chenkin.

C.V. Chen is one of Taiwan’s leading lawyers, Chairman and Managing Partner of the famous Lee & Li law firm in Taipei, Adjunct Professor of Law at National Chengchi University Graduate School of Law in Taipei and Lecture Professor of Law at the Guanghua School of Management of Peking University. He earned his S.J.D. degree at Harvard Law School in 1972.