Since the national affairs conference on judicial reform began its group discussions in February, the five sub-committees comprising the conference have reached a series of resolutions on a number of issues. As there are more than 100 issues that need to be discussed before the conference ends, there are expected to be 60 to 100 resolutions.
Many of the issues involve amending the law, and perhaps even the Constitution. In addition, many of them — such as choosing between a jury or a bench trial, creating a “pyramid structure” for the justice system and diversifying the recruitment sources of judges — are very complex, enormous in scale and require specialized knowledge.
Simply put, the number of issues the conference is planning to cover in just four months could surpass the number of bills that the legislature’s Judiciary and Organic Laws and Statutes Committee handles in two terms — or eight years.
This is not a joke or hyperbole. If authorities are to continue to dodge questions regarding the role of the national affairs conference, which they should have explained in the beginning, it is likely to end up like the long-stalled Taipei Dome project. In other words, the national affairs conference — which former Judicial Yuan vice president Su Yeong-chin (蘇永欽) once described as “judicial shenanigans” — would create more problems than it could solve.
To determine the role of the national affairs conference, it would be useful to review what its preparatory committee has said.
Chiu Hei-yuan (瞿海源), a member of the preparatory committee and convener of one of the conference’s sub-committees, said that the nature of the national affairs conference is to provide consultations and advice.
Hsu Yu-hsiu (許玉秀), another sub-committee convener, disagreed, saying that President Tsai Ing-wen (蔡英文) never said that.
Clearly, even the organizers cannot agree on the nature of the conference. However, this is not the only thing about the national affairs conference that is hard to believe. In the past few months, the conference has been involved in countless ridiculous incidents.
Aside from committee members taking on each other, the committee has also criticized others outside the committee. For example, according to a report by Storm Media last month, when asked by New Power Party Legislator Hsu Yung-ming (徐永明) whether the Judicial Yuan would implement decisions made by the conference, Judicial Yuan Secretary-General Lu Tai-lang (呂太郎) simply said the Judicial Yuan would respect the conference’s decisions.
Hsu responded that the conference would be a complete waste of time if the Judicial Yuan refused to carry out its conclusions.
In another report by the Chinese-language United Daily News last month, Democratic Progressive Party Legislator Ker Chien-ming (柯建銘) told Minister of Justice Chiu Tai-san (邱太三) that the Legislative Yuan would not do exactly as the national affairs conference says.
Indeed, the conflict between the national affairs conference and the legislature, and that between the conference and the constitutional system, have already reached the highest levels.
Tainan District Court Judge Lin Chen-hsien (林臻嫺) said the conference’s plans to reform the judiciary were attempts to “blatantly interfere with the judicial system in the name of judicial reform by allowing people with power, but no responsibilities, to make backroom decisions about the judiciary in an unchecked manner. It is unconstitutional and destructive to the nation’s political system.”
National Taiwan University associate professor Ko Ke-chung (柯格鐘) made a similar point.
“The national affairs conference has been given a status similar to that of parliament, if not higher. There is an urgent need to review and clarify the role of the national affairs conference responsible for judicial reform under the Constitution,” he said.
In short, the national affairs conference on judicial reform — which is to be presided over by Tsai when it reaches the final stage in June — is at best a consulting group for the president and the Judicial Yuan president, with absolutely no power to make policies or regulations. In terms of its legal status, it is below the Presidential Office’s Human Rights Consultative Committee, which is at least a long-standing official consulting committee.
Nevertheless, although some critics believe the conference is dominated by certain types of people, it does provide a way to collect opinions on judicial reform policies on top of existing channels. In many ways, it provides opportunities for open discussions, especially between legal and other experts, which is why legal experts comprise no more than 50 percent of the committee. This was design was based on the idea that the judiciary needs to go through a process of disenchantment — and this is why I have participated in the conference.
However, why is it that no one seems to be taking the conference seriously? Perhaps, it is because of people’s lust for power. Judicial reform would necessarily lead to a series of changes in the existing power structure and affect the interests of many.
Everyone has something they want, and they all know the conference can provide them with the pretext and tools they need to obtain them. If it was not for that, the conference would have simply been an opportunity for discussion. Moreover, it would probably not have been accused of making backroom decisions or trying to control the committee members by limiting their responsibilities and discussion topics. Clearly, the argument a disenchantment process is needed has some basis.
Before the conference can cease to be a power game for people who do not care about disenchanting the judicial system, there will always be a million reasons why it should not be convened at all. In addition to the unrealistic workload it is preparing to impose on the legislature, it cannot solve any disputes caused by the government’s judicial policies.
If anything, it would only create more conflicts with its ill-defined role. Each judicial administration would adopt only resolutions from the conference that benefit themselves, while rejecting those that disadvantage them on the grounds that the resolutions are non-binding due to the conference’s consultative nature.
Take the Judicial Yuan for example: It has been advocating streamlining the organization of the courts into a “pyramid structure” and creating a constitutional complaint or appeal system similar to Germany’s. If the national affairs conference decides to make those changes, the Judicial Yuan would have the support its needs to promote them, and counter resistance from judges and lawyers who oppose them.
However, if the conference decides that all first and second instances should be broadcast live, the Judicial Yuan is likely to ignore its opinion. Should that happen, self-proclaimed legal reformers and media-favored critics will lash out at the Judicial Yuan for disregarding the conference and abandoning the general public, which would in turn lead to more conflicts. Likewise, if the national affairs conference does not approve of switching to a jury system — which has come to be viewed as the panacea for all judicial problems in Taiwan — there will surely be more conflicts.
To sum up, instead of waiting for those conflicts to happen, why not work on promoting the much-needed disenchantment process first?
Lin Yu-hsiung is a professor in the College of Law at National Taiwan University.
Translated by Tu Yu-an
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