Published September 27, 2012 on the Judicial Reform Foundation Website
Judge Zhan Jun-hong of Taiwan's High Court told a defendant in his courtroom that if the defendant withdrew an appeal of the decision, Justice Zhan would make the sentence commutable to a fine and the defendant would not need to return to court. Relying on the judge’s advice, the defendant withdrew the appeal, but the law under which the defendant was sentenced is not one that allows commutation to a fine. Contrary to the judge’s assurance, the defendant ended up serving a sentence. The Judicial Evaluation Committee decided after an inquiry into the case that although the judge's misconduct warranted disciplinary action, his heavy workload was an understandable mitigating circumstance. Instead of sending Judge Zhan’s case to the Control Yuan for impeachment, the Committee instead referred his case to the Judicial Yuan's Personnel Affairs Committee, recommending that he receive two demerits.
After comparing the disciplinary provisions of the Judge’s Act and the Civil Service Performance Evaluation Act, the Personnel Affairs Committee came to a decision that the Judge’s Act should apply rather than the Civil Service Performance Evaluation Act based on doctrine that the punishment existing at the time of the offense applies unless an amnesty law imposes a more lenient punishment. Justice Zhan consequently received only a warning.
How can the judiciary have any claim to professionalism if a judge is permitted make mistakes even about whether sentences can be commuted to fines? There is a consensus that these mistakes should be appropriately sanctioned. Given that the Committee on Judicial Discipline recommended that Justice Zhan receive two demerits, why then did disciplinary action for his misconduct amount only to a warning?
Of course, the matter is not so simple. The mechanisms via which both the government and the public would be able to address judicial misconduct were a contested item during the legislative process for the Judges Act. In debating whether judicial disciplinary procedures should be under internal or external jurisdiction, the public strongly advocated against an internal disciplinary mechanism. However, the Judicial Yuan would not budge on this issue, believing that if judicial discipline were structured along the lines of what the public advocated, the judicial disciplinary process would careen out of control, perhaps even devolving into mob rule.
On the eve of the enactment of the Judges Act, the public was forced to compromise. The Judicial Evaluation Committee ended up under the Judicial Yuan, but the majority of its members would be drawn from lawyers and scholars outside the judiciary. In addition, the Judicial Evaluation Committee was given the power to refer judges to the Control Yuan in serious cases for “external discipline.” In less serious cases, judges would be referred to the Judicial Yuan's Personnel Affairs Committee.
The Limited Influence of External Committee Members
To date, the Judicial Evaluation Committee has issued three decisions. Of these, two judges have been referred to the Judicial Yuan's Personnel Affairs Committee with a recommendation for two demerits. Only one judge has been sent to the Control Yuan with a recommendation of suspension for six months.
This reveals the following about the practical effects of the Judicial Evaluation Committee's operations:
First, it has long been that due to the constitutional requirement of maintaining the independence of the judiciary, the Judicial Yuan is in principle self-regulating in judicial discipline matters, meaning that besides judges, no others may intervene in disciplinary affairs. However, since judicial self-regulation has been ineffective, an external supervision system was introduced to the Judges Act after much study and discussion of how to strengthen the Act’s evaluation mechanism. But legislative compromises led to extreme limitations on the powers of the members of the Committee from outside the Ministry -- consequently, out of three cases of judicial misconduct, only one has been handed over to the Control Yuan while the other two handled within the Judicial Yuan.
Second, leaving the discipline of errant judges within the Judicial Yuan has resulted in a situation whereby the Evaluation Committee, the majority of whose members are from outside, can merely "recommend" disciplinary action. The real power to decide sanctions remains with the Personnel Affairs Committee, 24 of whose 27 members are judges.
Third, in the two cases where the Judicial Evaluation Committee recommended that judges be given demerits for misconduct, the Personnel Affairs Committee gave the judges formal warnings instead. Their decisions were accompanied by legal reasoning, intimating that the Evaluation Committee was so lacking in legal expertise that needed clarification on the law’s application.
The Judicial Evaluation Committee was originally meant as a brand new system; at its inception, the Judicial Yuan even touted it as one of the big successes of judicial reform. Now, with its reform potential nipped in the bud, it is very likely that the Judicial Evaluation Committee will turn out to be a just paper tiger. If these conditions persist, we are sure to hear hear calls for another round of amendments to the Judges Act soon.