（原文連結。Insight/ Judicial Reform）
There’s a story I often tell. According to legend, Ghenghis Khan laid out a framework of regulations and instructions for his Mongol Empire in a book called the “Great Yasa,” literally the “Great Law.” One of its rules was that spies who reported ominous intelligence should be beheaded. Many entrepreneurs feel the same way when they get legal advice from lawyers or legal affairs people, treating them as annoying messengers of bad news and dismissing their advice. This is an extremely dangerous mentality. Ghenghis Khan’s style of leading his forces on rampages of unconquered lands no longer applies in today’s tightly and finely regulated social environment.Managers who do not understand the law’s role in a company’s operations are not qualified to be managers. Major corporate decisions cannot be made without seeking the advice of the enterprise’s general counsel, and it is quite common in advanced countries for general counsels to sit on their companies’ boards.
Twenty years ago, when Sony’s general counsel was invited to become a board director, he told me that Sony was the only company in Japan not to make the legal affairs department part of its general administration division.
The importance of general administration cannot be denied, but its role differs from that of the legal affairs department. The general administration division handles tasks such as construction projects and purchasing and must simply plan and execute its responsibilities in an above-board manner. The legal affairs department, on the other hand, must provide specialized advice to management and insist that it adhere to the law.
In the cases of former Philips Electronics Taiwan CEO Y.C. Luo and former finance minister Lin Chuan, the two would probably not be facing legal issues if they had sought advice from qualified legal counsel or government lawyers during the decision-making process.
The Need for Government Lawyers
The government is also a big corporation, and like big companies, it should have a legal affairs department staffed with “government lawyers.”
In terms of its organizational system and mentality, however, our government clearly has ignored the potential role of government lawyers. When public agencies go through major decision-making processes, they do not view legal counsel as an indispensable link in the chain, nor do they ask government lawyers to sign off on major projects.
By law, the Ministry of Justice should act as the government’s counsel, but funding is insufficient to cultivate lawyers who can provide executive agencies with expert legal advice.
That government agencies must adhere to the law when they perform their duties is an irrefutable truth. But agency heads often tremble at the fine line in Taiwan between graft and safeguarding the people’s rights, and they find themselves hamstrung when trying to act according to the law. Government lawyers can play critical roles in those situations by developing a firm command of the matter under consideration and providing accurate legal advice. If the plan is illegal, they should oppose it or express their reservations. If the plan is consistent with the law, then the agency will be free to help those in distress when a problem arises and protect the interests of the people.
Government lawyers provide legal advice to administrative chiefs, allowing them to fulfill their duties with confidence. They also serve as a “check and balance” to executive agencies by reminding policymakers that there are boundaries they cannot cross.
Aside from cultivating its own legal team, the government must also establish standard procedures for the provision of legal advice. Even more importantly, its lawyers must not only be professionally capable, but also have a broad perspective on what it means to adhere to the rule of law in administrative matters. Establishing a team of lawyers and developing standard procedures will not be effective if you do not have high-caliber legal professionals.
Government lawyers are not legal technocrats. They must have an accurate understanding of their professional responsibilities and a strong grounding in the legal humanities.
The goal of the law is to maintain order and help people forge an even better future. If laws that have been enacted are not good, they can be amended. But in many cases, it is not laws themselves that are inherently bad. Instead, civil servants, including the heads of government agencies, don’t adhere to the law in doing their jobs, causing people to suffer and wasting public resources. The prevention of such abuses depends on cultivating a law-abiding mindset.
A Big Tree’s Fallen Promises
At the most fundamental level, the cultivation and education of Taiwan’s legal community is fraught with problems that we must genuinely confront. When people in the legal profession in Taiwan study law at the university level, do professors teach them legal ethics? Do the professors serve as models of conduct for the students, or do they simply cram them with knowledge?
The initial stages of legal education should really challenge students. The legal profession is not a simple profession, and its influence is extremely widespread.
Another problem is that many in the legal profession protect one another. For instance, based on my understanding, when the Judicial Yuan has requested that the courts under its jurisdiction seek compensation from judges guilty of gross negligence in wrongfully convicting defendants, the courts have sometimes refused. This shows how serious the problem is. In such a legal environment, hypocrisy and covering up the truth are common.
As the philosopher Kahlil Gibran wrote, “As a single leaf turns not yellow but with the silent knowledge of the whole tree, so the wrongdoer cannot do wrong without the hidden will of you all.”
Only because Taiwan’s legal system has made large strides forward in the past 20 years, have people’s expectations (and disappointment) grown. The people’s confidence in and concern for the law are closely related. In today’s world, the interest people have in governance based on the rule of law far exceeds their fear of war.
From this perspective, wouldn’t it make sense for the government to re-allocate its budget? Our defense budget accounts for 20 percent of government spending (which means we can waste money to purchase 30 Apache helicopters we don’t need at NT$2.5 billion per helicopter, and that’s just the tip of the iceberg). Nevertheless, our Ministry of Justice has more than 1,000 prosecutors, and the court system, under the Judicial Yuan, has more than 2,000 judges, yet the budget for both groups is scarcely over NT$20 billion (only about 2 percent of government spending).
The legal reforms discussed above would have wide-ranging implications, involving the government, judges and lawyers. They would impact legal education, the design of the testing and training system, and the allocation of resources, and they would necessitate revisions of existing laws by the Legislature. No one agency could undertake the reforms on its own. Only President Ma Ying-jeou, who has asserted that he expects himself to serve as a “man of the
law who brings credit to the field,” possesses the status and resources to pull the five branches of government together under the Constitution and initiate reforms.
In a democratic society, democracy and the law are like a car’s wheels. They rotate together, and one cannot do without the others. In the long run, an upswing in public confidence indicators brought about by the consumption voucher program will definitely be far less beneficial than would a jump in the public’s confidence in Taiwan’s judicial system.
Translated from the Chinese by Luke Sabatier
By Interview and compiled by Isabella Wu and Yu-jung Peng
From CommonWealth Magazine
Published: January 21, 2009 (No.414)