56 TAIWAN BUSINESS TOPICS • NOVEMBER 2007
NOVEMBER 2007 • TAIWAN BUSINESS TOPICS 55
Taiwan Business TOPICS
Vol.37 – No. 11
國家法治 VI S ION 2 0 2 0
VI S ION 2 0 2 0 RUL E OF LAW
Taiwan Business TOPICS
37 – No. 11
Vision 2020 – Rule of Law
Rule of Law
C.V. Chen is managing partner and CEO of the Taipei law firm of Lee and Li, adjunct professor of law at National Chengchi University, and Chair of the Council of the Guanghua Law School of Zhejiang University in China.
The Urgency of Tackling Judicial Reform
China never had the long tradition of rule of law that existed in the West. That concept was introduced only in the late Qing Dynasty, through “gunboat diplomacy,” when the foreign powers set up extraterritorial jurisdictions withinChina. They had sought to trade with China, only to find that China lacked even a primitive court system, let alone written laws regulating commerce. As a result, they established their own court systems on Chinese soil.
Then after the Republic of China came into being and eventually the “unequal treaties” were abolished, a start was made in the late 1920s and early 1930s in introducing a Western-style court system and civil code. But those were just borrowed trappings, and with the Japanese invasion and then civil war, there was no chance for them to become deeply rooted.
After the government’s move to Taiwan in 1949, the situation was also abnormal because of the imposition of martial law. It was only 20 years ago, in 1987, that martial law was lifted. Has there been significant progress in developing the rule of law since then? Absolutely. But at the same time it is deeply disappointing that much more has not been done. The ending of martial law should have removed all the restraints that had held back the development of our legal system. Unfortunately, however, many psychological restraints still remained. The door of the bird cage was opened, but all those within the cage – the judges, prosecutors, law professors, lawyers, and civil servants – did not change their mentality. Instead of a breath of fresh air, there was continuation of a martial-law mindset of respecting authority over the primacy of the law. And that came on top of a Confucian mindset of emphasizing one’s relationship with others in terms of senior and junior, superior and subordinate, boss and employee. Given those psychological constraints, the judges, prosecutors, law professors, senior lawyers, and others who should be the conscience of the profession have all too rarely spoken out when they have witnessed shortcomings or abuses of the system.
As a result, although we are much better off than two decades ago with regard to the independence of the judiciary and the fairness of the proceedings, there has not been a complete end to political and other undue interference. A number of recent cases have raised concern about this point, and it is a problem that is not limited to any particular party.
During the Watergate crisis in the United States in the 1970s, Attorney-General Elliot Richardson refused President Nixon’s order to fire Archibald Cox, the special prosecutor, and then he himself resigned. Do we have anyone who would say “no” to the president? How many will say “no” to a superior? Do they have the wisdom, courage, and motivation? Before the year 2020 I would certainly hope we would be at the point where no political figures would dare to try to exercise any undue influence, and if it happened the judges and prosecutors would have the professional pride and self-discipline to resist.
Distance from the people
Another aspect that deserves attention is that our judiciary has tended to be very cold and indifferent to things that touch the heart of the people. To cite just one example, under our inheritance law, both the assets and the debts of the deceased are passed on to the heirs, unless the heirs declare within three months that the liability should not exceed the amount of money inherited. That was fine when we all lived in small communities and everyone knew everybody else, but now people may not know that they are heirs or even that their relative has died. And debts are handled in a much more impersonal way, with banks selling accounts receivable to collection agencies, who then do everything possible to collect the money. There have been cases of suicides because of pressures to repay the heavy inherited debt load, and reports of small children who will face crushing debts as soon as they reach adulthood.
Why didn’t the judges hearing these cases, the professors teaching inheritance law, or the legislators grasp the unfairness and try to find a remedy? I’m afraid the answer is that they were just too far removed from the people’s lives. Professional ethics should not just be a matter of refusing to take bribes or show favoritism; it is also a question of demonstrating social responsibility. Judges should not just stick strictly to the letter of the law while ignoring the spirit of the law. After all, the laws are supposed to be there to serve the people.
How to improve the situation? One way is to allocate much more resources for the judiciary. Judges (and prosecutors) cannot make wise decisions when they have to face impossible caseloads. With more budget, we can hire more judges, offer more pay to attract higher caliber judges, and provide more research assistants and other supporting infrastructure. The recent controversy over the accuracy of the prosecutor’s record of testimony in Ma Ying-jeou’s trial points up the sorry state of affairs. In the United States, even a nod of the head gets recorded by the court stenographer. Incredibly, here there is no accurate record, just the rough records based on the prosecutor’s discretion.
Another recent case points up problems with transparency and accountability. It involves three men now in their seventies – former employees at a government bank – who were finally found not guilty by the supreme court, 29 years after they were first detained on corruption charges and fired from their jobs. Over the decades their case was heard by a total of 99 different judges. In such instances of wrongful detention or judgment, the Judicial Yuan is required to review the files to see whether any judges or prosecutors should be held to account for gross negligence. But the review panel consists only of fellow judges, and they never find their colleagues guilty of gross negligence. The documents from the review process are not even readily available for public scrutiny. Currently the Judicial Yuan is promoting a set of reform measures that would help appreciably to improve judicial performance, but these will certainly face strong opposition from vested interests. One proposal would change the way judges are appointed. Now they come straight out of law school, taking the bench without the maturity or social experience to deal with complicated cases. The proposed change would adopt something akin to theU.S. practice of appointing seasoned lawyers with extensive professional expertise. Some study would be needed on how to phase in the new system, so that young people already being trained for judgeships would not be affected.
Reforming legal education
An even more basic reform being considered would revamp our legal education, which is currently mainly conducted at the undergraduate level. Students enter law school right out of high school, and then take the bar exam – or the exams for judges or prosecutors. That prevents them from acquiring a well-rounded education, leaving them with a rather narrow perspective. Requiring lawyers to have graduate-level education, as in the United States, would be a very positive step, but again sunset rules would be needed to take care of students already in the pipeline and also to upgrade the existing law colleges.
Also vitally needed is continuing education and retraining for legal professionals – including law professors – so that they are equipped to deal with sophisticated new developments. Otherwise their legal knowledge will quickly become obsolete. Instituting effective reforms in all these areas by 2020 means starting now. The media, the public, and relevant NGOs all have a role to play. But the key will be the existence or absence of strong leadership exerted from the top. In this presidential election, both candidates are veteran lawyers with wide experience. If the next president takes up judicial reform as a task of top priority, he will be remembered by generations to come for making an invaluable contribution to this society.
— Based on an interview with Taiwan Business TOPICS editor-in-chief Don Shapiro.