by Brian Hioe
Photo Credit: Tsai Ing-Wen Facebook
WITH RECENT contention regarding judicial reform, part of what would be at stake is questions of the fundamental basis upon which Taiwan’s legal system is built. Namely, not only many members of society but many members of the legal profession view Taiwan’s legal system as one in which judges are disproportionately powerful and that the power of judges needs to be reduced.
To begin with, Taiwan operates according to a legal system in which the final decisions are made by judges, rather than juries. Behind calls for judicial reform in Taiwan oftentimes is the view by lawyers and others that judges can be unaccountable in deciding the outcome of legal cases, particularly high-profile ones, and that a number of “dinosaur judges” persist within the justice system, who block needed reforms or otherwise make decisions in a manner unaccountable to the public but are unable to be removed from their powerful positions.
In spite of that a number of members of the public and members legal profession call for moving to a jury-based system, the groundwork does not seem to be in place for such a drastic shift to happen anytime in the immediate future. Nevertheless, so can we understand controversial moves regarding judicial reform in which committee members of the national judicial reform conference moved forward with a proposal to drastically cut the number of Supreme Court and Supreme Administrative Court judges from 94 to 21 and to allow the president to directly appoint judges without legislative approval.
This move has been criticized as undemocratic, for not only reducing the number of judges in Taiwan and in that way seemingly reducing the power of the judiciary, but expanding the power of the president and executive branch. And so some anger has been provoked by this proposal.
This proposal by the national judicial reform conference is particularly prone to provoking ire because of the fact that in Taiwan, which it must be remembered is only recently post-authoritarian. Any move aimed at strengthening executive power is viewed with a great deal of suspicion. This suspicion is for fear that it is an attempt by the president or any singular figure to accumulate executive power in a manner reminiscent of Taiwan’s past dictators, perhaps a suspicion pervasive in Taiwanese politics.
Hence why the national judicial reform conference committee’s recommendation led to many negative responses. Despite the claim of the Tsai administration that it respects judicial independence and that this was a move made by the national judicial reform conference committee without consulting with the executive branch, of course it was that the Tsai administration which appointed the members of this committee. This has left the Tsai administration open to charges that it is seeking to arrogate power to itself undemocratically.
Namely, while the need for judicial reform is widely spoken about, it is oftentimes unclear what this would mean, apart from that the judicial system is seen as disconnected from the public, lacking in transparency, and distrusted by members of the public. That is to say, the judicial system is seen as undemocratic.
However, it has always been unclear as to how wide-sweeping the powers that the national judicial reform conference committee have been granted are, as well as what form of “judicial reform” would satisfy the Taiwanese public would be, and how to carry out this set of reforms in a democratic manner which keeps everyone happily. The inherent difficulties of satisfying this mandate is why there have been widely reported resignations from the national judicial reform conference committee from members highly critical of the process, with the accusation from former committee members that this process has internally been top-down, undemocratic, and lacking in transparency in a “black box” manner.
Other issues are at stake. For example, it has been questioned whether transitional justice is part of the national judicial reform conference’s mandate or not, seeing as this is something else which the Taiwanese public calls for but it, too, is highly unclear through what means transitional justice is to be realized in Taiwan which satisfies the public. But, in this, we can see that many of the DPP’s present challenges return to question of how to resolve the legacy of past authoritarianism. Similarly, because transitional justice in Taiwan for the past crimes of the authoritarian period will need to be wide-sweeping, this has also been a matter upon which the present DPP administration has been accused of acting in a manner reminiscent of the past authoritarianism of the KMT which transitional justice is theoretically supposed to address.
But in general, calls for judicial reform probably return to the widespread sense that laws in Taiwan something outside of the reach of the public and that, in this way, Taiwan’s legal system is widely seen as undemocratic. However badly communicated and however badly coordinated with the executive branch of government this move has been, that members of the committee members of the national judicial reform conference call for the president to have greater powers in appointing judges, despite that this overtly seems to be undemocratic, is probably actually an attempt to make the legal system more democratic. After all, the president is elected by the people every four years, and so if the president is allowed to choose judges, this means that in an indirect way, judges can be elected by the people.
The future of judicial reform in Taiwan, then, is up in the air. Despite the demand from the Taiwanese people that judicial reform must take place in a manner as to make the legal system more democratic, will the miscalculations of the Tsai administration backfire and actually make it seem as if its attempts at judicial reform are only make the judicial system less democratic? This is highly possible, seeing as the Tsai administration has oftentimes failed to communicate its wide-sweeping reform measures very well to the public and come off as more technocratic than not.