Wed, Jan 19, 2011 - Page 8 News List

Draft judges’ law is still a ‘dinosaur’

By Lin Feng-jeng 林峰正

Jan. 11 was Law Day in Taiwan. By coincidence, the draft judges’ law, delayed for more than 20 years, passed its first reading in the legislature shortly before Law Day. Barring unforeseen circumstances, the bill should be passed into law during the next legislative session.

The problem is that if the bill goes through as it stands, it will not only fail to get rid of “dinosaur” judges, but will incubate, hatch and foster even more “dinosaur” judges.

Take for example the mechanism for removing incompetent judges from their posts or the system for evaluating judges. The Judicial Yuan unabashedly insists on keeping the evaluation system within its own walls and even rejects demands from civic groups that representatives of judges, prosecutors, lawyers and other professional groups that sit on evaluation committees be elected by those groups. Instead, the Judicial Yuan wants to give its own president, the Ministry of Justice and the Bar Association the power to appoint committee members.

The draft law also provides that the six evaluation committee members who are supposed to be academics and upstanding citizens would be selected by having the legislature, the Control Yuan and the Judicial Yuan each appoint two people.

Anyone can see that this arrangement gives the nation’s president, whose party holds a majority of seats in the legislature and who has the power to appoint the chiefs of the Control and Judicial yuans, complete control over the appointment of all six academic and -upstanding citizen committee members. That would clearly not be in keeping with the political principles of checks and balances and division of power.

Even more absurdly, the wording of the current draft of the law flies in the face of a consensus that had existed between civic groups and the Judicial Yuan for many years, in that the bill does not allow parties to judicial cases to lodge complaints about the judges who handle their cases.

So the existing bill completely denies victims of miscarriages of justice the possibility of directly protesting their innocence. At the same time, the Judicial Yuan insists that a judge’s opinion on the application of law cannot serve as the basis for his or her evaluation. In other words, if there is a “dinosaur” judge, nothing can be done about it.

Although the Judicial Yuan has accepted the suggestion by civic groups that all judges be evaluated at regular periods, it only agreed that these evaluations be done every five years. Instead of having the evaluations done by a judge evaluation committee including external members, the Judicial Yuan wants to arrange them itself, and it is not willing to make the evaluation results public. Furthermore, the adjudicators of the judicial disciplinary court that would make a final decision on disciplinary measures against judges would themselves all be judges.

It can be seen that the system for evaluating judges in the draft law does not offer anything new compared with the existing system, under which members of the public can report judges directly to the Control Yuan. In fact, it may even be a step backward.

The call from civic groups for all judges to be subject to evaluation has been sidetracked into a closed-door procedure within the confines of the Judicial Yuan, rendering it completely ineffective as a means of oversight. It also runs contrary to the promise made by President Ma Ying-jeou (馬英九) in the “declaration of human rights for the new century” that formed part of his election campaign to “weed out judges who abuse their powers or are negligent through a system of regular evaluations conducted by people from various professional backgrounds and involving public participation.”

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