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Taiwan: Law on Removal of Judges Adopted, But Dinosaur Judges Might Not Become Extinct

(July 6, 2011) On June 14, 2011, Taiwan’s legislature adopted a controversial Judges Act (Fa-kuan fa) that creates a mechanism for removal from office of incompetent judges. The 103-article Act has been in the making for 23 years, but critics contend that the law is flawed and may harm judicial independence in Taiwan. (Judges Act [in Chinese] (adopted on June 14, 2011; the official version will be the text promulgated by the President of Taiwan), Legislative Yuan website (June 14, 2011); Zach Zagger, Taiwan Passes Controversial New Law to Remove Judges, PAPER CHASE NEWSBURST (June 15, 2011); June Tsai, Legislature Passes Law for Removing Judges, TAIWAN TODAY (June 15, 2011).)

The Act’s passage comes in the midst of public concern over a series of judgments that fell short of the expected outcomes and after a number of cases of judicial corruption, particularly in connection with High Court judges. (Zagger, supra.)

“Judges” under the new Act refers to Judicial Yuan Grand Justices, Commission on Disciplinary Sanctions of Functionaries personnel, and judges in all courts (Judges Act, art. 2). The Act prescribes the establishment of three new committees under the Judicial Yuan (Taiwan’s highest judicial organ) related to the selection and evaluation of judges:

1) The 27-member Judicial Yuan Personnel Review Committee (Si-fa Yüan jen-shih shen-i wei-yüan-hui) comprises the President of the Judicial Yuan; 11 members designated by the Judicial Yuan; 12 judges chosen by vote from among the judges of courts at every level (one from the Supreme Court, one from the Supreme Administrative Court and the Commission on Functionaries’ Disciplinary Sanctions, two from the high courts, one from the high administrative courts and intellectual property courts, and seven from the local courts and juvenile and family courts); and three academics or experts selected by the President of the Judicial Yuan from a list submitted by the Ministry of Justice and the Taiwan Bar Association. The Committee will review such matters as the appointment, transfer, dismissal, promotion, appraisal, and rewarding of judges and the determination of the qualifications of specialized judges. The scholars and experts will only have the power to vote on matters related to judges’ appointment and dismissal; on other matters they may express an opinion but not vote. (Judges Act, art. 4).

2) An 11-member Judges Evaluation Committee (Fa-kuan p’ing-chien wei-yüan-hui), will evaluate judges at least once every three years. The Committee will comprise three judges, one prosecutor, and three lawyers (chosen by vote among each respective group), as well as two academics and two impartial members of the community selected by the President of the Judicial Yuan. Crime victims or persons involved in lawsuits may also apply for an individual judge to be evaluated. (Id., arts. 31, 33; Tsai, supra.)

Among those who may request evaluation are three or more judges in the same agency as the person to be evaluated, parties in a case, victims of crime, and the local or national bar association. (Judges Act, art. 35.)

If the Committee decides that a judge should be disciplined, it reports to the Judicial Yuan for referral of the matter to the Control Yuan (Taiwan’s highest supervisory agency, for handling censure, impeachment, and audits); the Committee can suggest the type of punishment that should be meted out. If punishment is not necessary, the case will be sent instead to the Judicial Yuan Personnel Review Committee; the Committee can suggest the type of administrative sanction that might be applied. (Judges Act, art. 39.)

3) The Judicial Selection Committee (Fa-kuan lin-hsüan wei-yüan-hui) is to have at most 19 members and no less than 12. Its purpose is to insure that newly appointed judges, apart from those who have been hired as a result of taking the judges or procurators’ exam, have the requisite qualifications; it also assesses the qualifications of judges who are seeking reappointment after having left office. The Committee is to be headed by the President of the Judicial Yuan and include two representatives from the Examination Yuan (the branch of government that oversees the civil service system), six representatives of judges, one prosecutorial representative, three lawyers’ representatives, and six scholars (in the fields of law, sociology, or psychology) and impartial members of society. Committee members are to be chosen in the same manner as that prescribed for the Judicial Evaluation Committee. (Judges Act, art. 7.)

In addition, the Act prescribes that the Judicial Yuan is to set up an internal Official Duties Tribunal, with the head of the Commission on Disciplinary Sanctions of Functionaries as the presiding judge and four judges as accompanying judges. The Tribunal is to hear matters involving disciplining of judges; revocation of a judge’s appointment qualifications, dismissal, stoppage or removal of official duties, reassignment to non-judicial duties, or transfer; inspections of judges’ official duties that affect judicial independence; or other matters that according to law fall under the tribunal’s jurisdiction. (Arts. 47 & 48.)

According to Chiu Jui-hsiang, a member of Taiwan’s Judges Association, the Act will promote more self-discipline among judges and improve the “care, speed and fairness” with which they handle cases,” so that public confidence in the judiciary can be boosted. (Tsai, supra.)

By contrast, Executive Director Lin Feng-jeng of the nongovernment Judicial Reform Foundation, while acknowledging that “the legislation allows for the dismissal of judges who enjoy lifelong tenure, … gave the act a score of only 50 out of 100.” (Shih Hsiu-chuan, Legislature Finally Enacts Judges’ Act, TAIPEI TIMES (June 15, 2011).) He cast doubt on the Act’s effectiveness for the purging of “dinosaur” judges, expressing particular concern over the fact that the internal Tribunal, whose say is final on the meting out of disciplinary actions, comprises only senior judges who will evaluate their peers, which “could render the removal of poorly performing judges impossible.” (Id.)

Moreover, Lin criticized the fact that the selection of non-judiciary committee members is still subject to the President of the Judicial Yuan’s decision, which might make it “difficult to prevent judges from protecting their own and helping one another out” (Tsai, supra), and termed the inclusion of such members, who are so few in number, only a “half-hearted” reform. (Shih, supra.)