The Judicial Yuan's History of Bad Precedents: On the Relief of Presiding Judges from Their Administrative Duties

The judicial practice circles love looking at criminal records. When police arrest someone, they check household registration and criminal records right away. When prosecutors interrogate suspects, their very first action is also to check criminal records. When judges receive a case, the criminal record sheet is already stapled into the dossier. Individuals with extensive criminal records naturally fail to make a good first impression on police, prosecutors, and judges, easily giving rise to preconceived biases.

Therefore, Article 288 of the Code of Criminal Procedure requires judges to examine a defendant's criminal record "last," hoping that judges will "make a judgment commensurate with the evidence" and avoid arbitrary speculation. In June, Judge Chang Yu-feng was relieved of her concurrent post as a presiding judge by the Judicial Yuan. Because she had just adjudicated Wang Chin-pyng's party membership case and ruled against the Kuomintang, speculations of political retaliation ran rampant.

Even though the Judicial Yuan issued a "super stern" statement, it seemed unable to restore the public's confidence. There is no other reason for this: the higher-ups at the Judicial Yuan have a history of manipulating judicial personnel, love playing procedural games, and drill through legal loopholes. It is well-founded that they fail to command the trust of the people and ordinary judges.

The Looming Specter of "Everlasting Presiding Judges"

No institutional culture or problem arises overnight. Although judicial reform has been underway for over a decade, the "everlasting presiding judge" has remained an inescapable nightmare. "Everlasting" means that presiding judges can serve for a lifetime; once they attain the position, they never step down. Of course, if this were a grueling task, people might not fight over it, but the post of "presiding judge" is a "sweet sinecure"—and this is the true nightmare of the judiciary.

In the early days, presiding judges could "throw their weight around." During the period of martial law, the authoritarianism of the party-state prevailed, and military hierarchy was applied everywhere. They stressed seniority, valued pedigree, and talked about obedience, euphemistically calling it a "concept of ethics"—no different from the army. "Presiding judges" in the legal sector, to put it bluntly, were like "old hands" in the military who could bully rookies at will.

In the past, presiding judges enjoyed ample pay, minimal duties, and evaluation power, allowing them to exert tangible influence over other judges and cow others with the pressure of seniority. Mildly speaking, the outcome of a judgment was dictated solely by the presiding judge, making the so-called judicial "collegiate panel" a self-deceptive trick; gravely speaking, if a presiding judge lacked integrity, took bribes, or accepted political interference, it would severely compromise the impartiality of the judiciary.

After the lifting of martial law, society gradually opened up, the judicial reform movement began, and the Judicial Yuan indeed made some efforts. Similar to the "improper discipline" of military veterans using rank to oppress rookies, the vile behavior of "everlasting presiding judges" gradually became intolerable. The problem is that, whether constrained by insufficient strength or self-bound by a culture of complicity, the higher-ups at the Judicial Yuan dared not genuinely challenge the issue of whether presiding judges were fit for office, and could only spin their wheels around formal "terms of office."

Scars from Direct Confrontation

Promulgated by the Judicial Yuan on May 5, 1995, the "Main Points for Implementing the Tenure and Reassignment of Presiding Judges" explicitly targeted only presiding judges "at or below the High Court level." From the formal first step, this was already unfair—what about the Supreme Court? Could it have "everlasting presiding judges"? Furthermore, the term for High Court presiding judges was four years, while District Court presiding judges served three years. For no good reason, the High Court had an extra year over the district courts, which was evidently a mindset of "higher-level trials matter more."

The Judicial Yuan dared only use formal "terms of office" to block everlasting presiding judges, while lacking the courage to directly challenge them on "moral character, scholarship, competence, and work performance." Because these "Implementing Principles" lacked formal fairness from the start, they were destined to be the beginning of failure. To make matters worse, completely devoid of any concept of "procedural justice"—with no evaluation mechanism, no committee review, no recruitment of external members to demonstrate objectivity, and no opportunity for those evaluated to respond—it was entirely up to the President of the Judicial Yuan alone to make the call.

Facts have proven that if the Judicial Yuan stands on shaky procedural grounds, no matter how correct its judgments or how well-intentioned its efforts, it will trigger a "backlash" and ultimately please no one. Although Presidents Shih Chi-yang (施啟揚) and Weng Yueh-sheng (翁岳生) relieved a large number of "everlasting presiding judges" from their concurrent posts—receiving strong support and praise from young judges—they immediately met with fierce backlash, resulting in lawsuits against the Judicial Yuan, appeals to the Control Yuan, and petitions for constitutional interpretation, which led to Judicial Yuan Interpretation No. 539. Afterward, the Judicial Yuan "cowered" and was severely criticized by young judges.

On February 8, 2002, Interpretation No. 539 was handed down, and it is said that the undercurrents of maneuvering behind the scenes were turbulent. While the Judicial Yuan won face, and the "Main Points for Implementing the Tenure and Reassignment of Presiding Judges" were ultimately not declared unconstitutional, the Justices also issued a warning: regulating the reassignment of presiding judges via "administrative orders" was inappropriate and "should preferably be governed by statute." However, while the relieved presiding judges had filed for constitutional interpretation on January 7, 2000, the Judicial Yuan held out for only half a year before automatically amending the "Main Points" on July 28, allowing presiding judges to be reappointed "indefinitely." The "everlasting presiding judge" was resurrected; although the Justices wielded the law lightly, the Judicial Yuan actually lost miserably.

Conspicuous Chisel Marks of Indirect Legal Manipulation

By this point—whether amending the "Main Points" in 2010 or revising and renaming it the "Regulations on the Tenure and Reassignment of Court Presiding Judges" in 2012 in response to the passage of the Judges Act—the Judicial Yuan no longer dared to demand that presiding judges "shall not" be reappointed indefinitely. However, with accumulated experience and an emphasis on procedure, an increasing number of procedural requirements and substantive evaluation standards were incorporated.

The lesson learned by the Judicial Yuan was that senior presiding judges held immense power; wanting to "confront" them head-on required "pulling in more people to endorse the decision." Thus, a "Review Committee" was formed, consisting of the Secretary-General and Deputy Secretary-General, several court presidents, law professors, and attorneys, with the ability to consult opinions from "judges of the presiding judge's superior court, judges of the same court, and the court president." Consequently, although presiding judges could still in principle be reappointed indefinitely, if the Judicial Yuan wanted to oust someone, the President of the Judicial Yuan could step back into the second line and use the excuse that the "Review Committee" conducted an independent review, sparing the President from personally deflecting bullets.

After the passage of the Judges Act, this general procedural tone was largely maintained, and the possibility of "everlasting" tenures was restricted by capping terms at one reappointment as a general rule. To continue serving further, approval was required not only from the "Review Committee" but also from the "Judges Personnel Review Committee," effectively requiring candidates to "pass two hurdles." Although judicial higher-ups seemingly distanced themselves further and appeared more hands-off by respecting the reviews of the two "committees," discerning observers knew well from the nomination process of these committee members that the Judicial Yuan still held considerable influence.

The Judicial Yuan established the "Presiding Judge Tenure Review Committee" with 11 members. Five are official ex-officio representatives, plus three judge representatives from the Personnel Review Committee of the Supreme Court, High Court, and District Courts, which already forms a majority. The remaining representatives—one scholar, one prosecutor, and one attorney—carry little weight. Not to mention, the prosecutor and attorney representatives must first be vetted by the President of the Judicial Yuan, giving the Judicial Yuan high control over this committee.

Even if a presiding judge's reappointment requires the consent of the "Personnel Review Committee," the President of the Judicial Yuan still exerts tight control over it. Pursuant to Article 4 of the Judges Act, besides serving as the ex-officio chair, the President can appoint 11 members, while judges elect 12 representatives across judicial levels. Even with the addition of 3 external scholars and experts, the President of the Judicial Yuan only needs to pull 2 votes (14:13) to easily secure a majority.

The explanations above concern only the "composition" of the committees, without yet criticizing the ulterior motives of the Judicial Yuan, which made covert alterations—hard for outsiders to detect—to the "powers" of the committees. For example, regarding the review of presiding judge service, a term lasts three years, and whether one can be reappointed for another term after three years is entirely up to the "Presiding Judge Tenure Review Committee," completely bypassing the "Personnel Review Committee." The logic is simple: the "Personnel Review Committee" has 27 members coming from all over the country, making it inevitably "talkative." Even if the Judicial Yuan could control it, leaks are easier and tend to invite external criticism.

From this analysis, it is clear that from beginning to end, past and present, the Judicial Yuan has sought to tightly grip the personnel authority of presiding judges in its own hands. The process of formulating administrative orders bears the conspicuous chisel marks of manipulation, treating Judicial Yuan Interpretation No. 539 as a dead letter, arbitrarily using administrative orders for control, and refusing to elevate the matter to the statutory level. Consequently, any strike against presiding judges—regardless of whether it earns applause—will inevitably point its spearhead directly at the Judicial Yuan.

This also explains why conspiracy theories are swirling over the removal of Judge Chang Yu-feng as presiding judge this time. Even if Chang is truly an unfit presiding judge, the Judicial Yuan has only itself to blame: plagued by complicity and insensitivity, it long lacked the courage to directly point out Judge Chang's unfitness or engage in a "frontal showdown." Combined with its past record of manipulation, like the boy who cried wolf, who would believe that the Judicial Yuan completely "kept out of it"?

Presiding Judges Are Merely "People on Duty"

When all is said and done, what is so great about being a "presiding judge"? In the early days, the judiciary was merely a "hitman" subordinate to the executive branch, and judges were no different from section clerks within the administrative bureaucracy. Presiding judges were simply "section chiefs"; staying long enough and gaining seniority led to "promotion." Perhaps this was also understandable; after all, our judges are selected through examinations, and quite a few become judges at a young age in their twenties. Having senior predecessors guide them is not a bad thing.

However, as times change and the judiciary achieves independence, the mindset of administrative bureaucratic hierarchy should be thoroughly discarded. "Judges have no seniority ranks"; every judge should exercise independent adjudication according to the law, free from any influence—including influence from presiding judges.

This does not mean a complete opposition to the "presiding judge" system. After all, under the spirit of "judicial self-governance," certain administrative tasks still require judges to shoulder them themselves. Therefore, serving as a presiding judge should resemble a form of "service" rather than a "promotion." Administrative service may be a "grueling task," making a presiding judge more akin to a person "on duty."

Yet, the Judicial Yuan's struggle against "everlasting presiding judges" occurred merely a decade ago, and the culture of judges self-deprecating and subservient to seniors has not yet been eradicated. For a short time, holding the post of "presiding judge" will likely still struggle to shake off the undertone of "promotion."}崔

Therefore, what remains curious is whether the Judicial Yuan is more eager to strip presiding judges of their "official rank" color so that relieving them of concurrent duties will not stir up massive ripples or drag in excessive conspiracy theories; or whether it is more eager to retain absolute power and keep everything as it is?

If it is the latter, enduring some scoldings is only fitting.