Judicial Reform that has forgotten the People

Judicial Reform that has forgotten the People
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
October 01, 2007

Chairman of the Judicial Yuan Weng Yueh-sheng resigned today. The judicial reform project he led for eight years has come to naught, to his eternal regret. Reform of any kind is never easy. Judicial reform is no exception. One can find a million reasons for the failure of Weng's reforms. But at the root of Weng's defeat lies a loss in his reformist faith, an erosion of his concern for the ordinary citizen, a gradual scaling down of ambitions, an incremental compromising of his self-respect, until one day it's all over, and it's time for someone else to take over.

The first obstacle Weng's judicial reform had to cope with was political interference with the judiciary. In terms of constitutional structure, the judiciary is weak in comparison with the other branches of government. In confrontations with the power of the executive or the legislature, all the judiciary can count on is the moral support of public opinion. In the past, public faith in the judiciary was lacking, primarily because the judiciary was under the political control of the executive. But with the lifting of martial law and regime change, the judiciary had a golden opportunity to turn over a new leaf and become truly independent. Weng Yueh-sheng stood astride this historic watershed.

Weng Yueh-sheng led the Judicial Yuan for eight years and eight months. During the last seven and half years, his one-time student Chen Shui-bian was president. A president with a legal background, who represents "native" political forces. Had Chen elected to work with his teacher Weng Yueh-sheng, the two could have ushered in a new era of judicial independence, a new era of political stability, a new exemplar of constitutional rule. Instead, and this is what makes one tear one's hair out, they turned back the clock of justice.

Chen Shui-bian forgot his history. He forgot the ringing declarations he once uttered on street corners and in the halls of parliament. As president, how many times has he cavalierly belittled the judiciary? Forget talk of judicial independence. Chen abused his power as president, humiliating the judiciary for the sake of narrow political advantage. The judiciary has desperately needed an image makeover for the past eight years. The appointment of Weng Yueh-sheng was critical. Yet he chose to hide behind the excuse that "the judiciary should not intervene in politics." Citing the separation of powers as a pretext, Weng allowed his student, the president, to do as he damn well pleased. Weng failed to realize that without public trust in the judiciary, he had nothing. No matter what he did, people would presume political intervention. Weng Yueh-sheng claimed he was unwilling to intervene in politics. What he really meant was he was unwilling to disobey the president. What he really meant was he was afraid to defy political forces bent on humiliating the judiciary.

When push came to shove, Weng Yueh-sheng cut and ran. An opportunity to restore public trust in the judiciary, to put the past behind, to demonstrate genuine independence, was lost forever. Instead the judiciary carried on as usual, making endless concessions to political authority. Chen Shui-bian and Weng Yueh-sheng failed to demonstrate concern for the people. They failed to return to the essential nature of justice, concern for the common man. They forgot the meaning of judicial reform. They forfeited the opportunity make judicial reform a reality.

The second obstacle judicial reform had to face, was the same obstacle every kind of reform always has to face. When the branches of government check and balance each other, the guiding principle must always be concern for the people. Otherwise, it is reform, but the division of spoils.

Judicial reform involves many levels. The court system, the prosecutorial system, police agencies, defense attornies, and law schools. Each have their own views. In 1999, Weng Yueh-sheng became Chief of the Judicial Yuan. This inspired judges, prosecutors, attorneys, and law professors to organize national judicial reform conferences, arriving at a wide range of conclusions. The movement could have become the driving force behind calls for judicial reform, for a "grand confluence" of the legal world. It could have united the legal world behind a common consensus, promoted reorganization of the judiciary, reform of the appeals process, and tightening of civil law procedures, allowing people to receive swifter justice. The number of cases could have been reduced. Judges' case loads could have been lightened. Unnecessary bureaucracies could have been eliminated.

Justice delayed is justice denied. The goal of such reforms was to ensure swift justice. Reorganization and restructuring could have waited until conditions were right. Instead conceptual reforms were implemented concurrently with the reorganization of the judiciary and the reform of the appeals process. Reformers failed to anticipate the predictable reaction of special interests. Reduced case loads meant reduced attorney fees. As a result, special interests either boycotted the reforms, or colluded with political interests to resist their implementation.

Specific maladies require specific cures. Proposed solutions must address human motivations. They must improve communication during "third instance" appeals, radically transform the trial process, get back to people oriented reform, and reform the appeals process, allowing people to receive swifter justice. Prior to the implementation of such reforms, administrative oversight must allow corrupt judges no leeway, in order to ensure fair trials. But Weng Yueh-sheng seldom came in contact with ordinary citizens mired in the trial process. He did not feel their pain. It was easy for special interest groups or disgruntled judges to persuade him to back off.

Had Weng Yueh-sheng understood the necessity of "Justice for All," he might have been able to establish a fearless new climate in which legal reformers could operate. Alas, Weng Yueh-sheng, who first assumed the post of Grand Justice in 1972, was unable to liberate himself from his self-imposed bonds. He was unable to display the character and dedication to the people and the law necessary to make him more than a passing figure in the history of judicial reform.

忘了人民的司法改革
【聯合報╱社論】
2007.10.01 02:38 am

司法院長翁岳生今日卸任，他所領導的八年司法改革工程亦以形象破毀收場，空留遺憾。改革向來不易，司改亦非例外；然八年司法改革之敗，原因萬縷，追根究柢卻是敗在失去「以民為念」的改革信念。格局日小，尊嚴日失，終於走入敗局，足為新任司法院長戒。

司改的第一大難，在於政治力侵犯司法。司法在憲政架構中原處於相對弱勢，欲與行政、立法權抗衡，只有仰賴公信形成的民意支持。過往司法公信不立，一大原因是司法受政治、行政力量支配；但隨著解嚴、政黨輪替，司法本有改運翻身、確立獨立地位的大好機會，翁岳生正站在這個歷史的機會點上。

翁岳生在司法院掌舵八年八個月，有近七年半是學生陳水扁總統在位。學法出身的總統，又是代表本土的新生政治勢力，若能協同恩師翁岳生共創司法獨立的新紀元，將是台灣新生的一股穩定力量，必可創造憲政美談。結果，卻是令人捶胸頓足，司法形象出人意表地大開倒車。

陳水扁似乎忘記了歷史，忘記他曾在街頭、在國會殿堂捍衛司法的慷慨陳詞；他以總統身分多次輕率地發言消費司法，別說什麼共創司法獨立的新紀元，根本是利用總統職務之便，為政治利益公開欺凌司法。過去八年司法亟須重建威信的關鍵時期，翁岳生的選擇尤為關鍵，但他卻躲在司法權不應隨意涉入政治、須保留憲政最後機制的藉口裡，任由其學生總統為所欲為。殊不知，司法沒有了公信，什麼憑藉都沒有了；不管做什麼，都會有人民懷疑政治力寄身其中。翁岳生說是不願涉入政治，其實是不願、也不敢拂逆總統，不敢對抗欺凌司法的政治力。

翁岳生在關鍵時刻選擇了逃避，以致司法公信非但未能在最好的時機一飛沖天，擺脫過去，昂然展現為誰都不敢侵辱的獨立形象；反而卻令司法繼續耗損能量，不時和政治妥協或交混。陳水扁和翁岳生都未能「以民為念」，回到司法的最終本質去看待司法，為人民著想，以致失去改革的準則，壞了司法改革的大好契機。

司改的第二難，和其他各種改革一樣，在調和各種內外勢力，但調和的最高指導原則，仍在「以民為念」的改革初衷。否則，那就不是改革，而是利益的重分配了。

司法改革牽涉層面很廣，審判機關、檢警機關、律師，和學術界都對之有意見。翁岳生於民國八十八年就任司法院長當年，促成審、檢、辯、學召開全國司法改革會議，作出不少結論，本可做為推動司法改革的憑據，一時儼然成為司法界的盛事。若能依據結論戮力執行，推動司法組織、訴訟制度的修法，即可嚴謹化訴訟的過程，讓人民能及早得到正確的訴訟結果；案子因此自然減少，法官的辦案負擔也就能同時減輕，連帶司法組織就能精簡。

細緻化這套改革理念，應該是以人民及早獲得迅速、正確審判結果為先；至於組織的整併只是附隨的效應，可以水到渠成。不過，這套改革理念在執行時，卻是組織、訴訟制度的改造同時進行，忽略了改革過程中一定會碰到的審判文化改變，及案件減少致律師生計明顯受到影響的現實衝突；結果，組織及制度的改造，都因涉及特定團體的杯葛，甚至攀附政治勢力以抗衡的拉扯而受挫。

遇此改革瓶頸，要對症下藥，須從杯葛勢力產生的問題源頭去溝通，並調整改革的順序。例如，加強和三審溝通，躍身為新的審判文化塑形，並回到改革為民的立基點上，主導修正訴訟制度，以使訴訟能正確迅速判決；在未能完成修法前，則要儘可能透過行政監督，使壞法官無顏立足，提升審判的品質。但是，很少直接接觸審判民眾的翁岳生，無法親身感受小民歷經訴訟折磨之苦，在改革過程中，很容易因為眼前的民間團體，或法官的抱怨而躊躇，停滯了改革的步伐。

其實，若能認清「司法為民」的本質，翁岳生至少可以建立司法改革以人民為大，什麼都不怕的新司法文化；然而，從民國六十一年即開始擔任大法官的翁岳生，還是無法拋棄自我的禁錮，無論對總統，對特定團體，都沒有展現為人民、為司法獻身的風骨，以致成為司法改革歷程中的又一名過客院長。