For conference discussion only. Please don’t cite without permission.

Regime Shift and Prosecutorial Reform in

Chin-shou Wang Assistant Professor Department of Political Science National Cheng Kung University [email protected]

Presented at Fifth European Association of Taiwan Studies Conference which will be held from April 18-20, 2008 in Charles University, Prague, Czech Republic. The conference is co-organized by the Centre of Taiwan Studies, School of Oriental and African Studies, University of London and Charles University.

1 INTRODUCTION

Is it possible that judges can play a leading role in pursuing under a one-party-dominated regime? If the answer is yes, what are the characteristics of the reform-minded judges? What strategies will the judges carry out?

How do the authoritarian parties respond to the reform-minded judges’ actions? What can be accomplished by the judges’ reform movement? And what is the limit of the judges’ reform actions? In this paper, I will use the case of Taiwan to show that the judges can play a pivotal role in building an independent during political transition. Brian Z. Tamanaha (2004:59) argues that “the legal profession, then, is located at the crux of the …the rule of law could not conceivably function without this group committed to the values of legality. This position, however, also renders the legal profession, judges in particular, uniquely situated to undermine the rule of law.” However, scholars in the field have not yet devoted sufficient attention to the roles that judges play in the process of building the rule of law.

Judges are of key importance to whether or not the rule of law takes hold. Unless judges have the consciousness of judicial independence and the courage to resist interference, institutional protections cannot guarantee judicial independence. Judges play some role in judicial non-independence, regardless of whether they find themselves coerced or volunteer and whether they act consciously or unconsciously.

“Ultimately ensuring the development of judicial independence is the responsibility of the judiciary itself; it is up to the judiciary to act independently” (Dakolias

1995:172-73). Ferejohn makes a similar argument: “But providing personal protection is no guarantee that they will respond to law and the constitution in desirable ways”

2 (1999:354).

Normative studies emphasize the importance of judges in maintaining the rule of

law. However, most studies seldom explore with depth the question of whether judges could play a leading role in pursuing the rule of law. In this paper, I will show that

Taiwan’s district-court judges and , who occupy the lower echelons—the bottom—of the judiciary, play a leading role in the movements for judicial-independence reform. The goal of these reform movements is to remove institutional arrangements that the authoritarian party and the judiciary’s elites have used to block judicial independence. The two major strategies that this party—the

Kuomintang (KMT)—and the judicial elites have used to control the judicial system are case control and personnel control. The movement for case-assignment reform constitutes a revolt against case control; the movement for reform of the Personnel

Review Council of Judge against personnel control.

During the authoritarian period, the KMT used the judiciary for several political purposes. First of all, the judiciary legitimatized the KMT’s authoritarian rule through the implementation of martial law. Second, the KMT used it to oppress the opposition parties.1 Two other uses relate to clientelism, which the KMT used to consolidate its

authoritarian regime. One of these clientelist uses involved the KMT’s exploitation of the legal system as a way to punish defecting clientelist elites (Wu 1987). The other use involved the judiciary’s protection of clientelist elites’ corruption, a use that, itself, falls into two sub categories. One is the protection of vote-buying during elections. In

this regard, the KMT’s system of clientelism and of local factions almost always

mobilized voters with vote-buying. Vote-buying has been an essential part of the

KMT clientelist campaign machine. Without vote-buying, the KMT clientelist

1 For a discussion of this issue, refer to Chiu (1997).

3 political machine cannot function well (Wang 2004). The other political use for KMT

clientelism is protection of clientelist elites’ corruption. It is quite simply the case that clientelist elites indicted on corruption charges cannot easily win elections.

Taiwan judicial independence has made much progress since the beginning of

Taiwanese democratization, although it has received relatively little attention from the public, politicians, and academic researchers. The pubic maintains its perception that political parties and politicians still can easily control the judiciary. And as the judiciary has become more and more involved in Taiwan’s politics, the perception has threatened to harm Taiwan’s democracy. In this paper, I explore this often overlooked but important issue. What has happened in the movements for judicial independence reform? What are their achievements? Who are the activists in the movements for judicial-independence reform? What are characteristics of the movements for judicial independence reform?

JUDGES AND THE RULE OF LAW UNDER PRESSURE

Most studies in the field do not explore the possibility and, indeed, the reality

that judges can play a positive role in judicial reform under an authoritarian regime. In

general, the dynamics of judicial reform come from three types of resources, or three

types of actors. The first is international organizations, such as the World Bank, the

Inter-American Development Bank, and the United States Agency for International

Development (USAID). These international organizations offer not only funding but

also blueprints for judicial reform for some third world countries (Dakolias

1995-1996; Prillaman 2000; Domingo and Sieder 2001). The second is politicians and

political parties (Chavez 2004; Finkel 2004, 2005; Helmke 2005; Ginsburg 2003;

4 Hirsch 2004). They may have many different reasons for their decision to carry out judicial-independence reform. Most cases involve farsighted politicians who control the judiciary but give up this very power. Politicians are risk averse and forward looking. They know that if they lose power someday, their opponents would use the controllable judiciary to attack any established politician who did not surrender control and let the judiciary gain independence (Magalhaes 1999; Ramseyer and

Rasmusen 2003; Stephenson 2003). This argument is called “insurance theory.” The third type of resource is nongovernmental organizations (Dakolias 2000). One example of this resource is Human Right First whose missions include building respect for human rights and the rule of law.

The judiciary and judges under authoritarian regimes constitute one area that society should reform. There are several reasons for which the public expects judges to reform neither themselves nor judicial institutions. Judges have a vested interest in the status quo of judiciary. Judges were trained and disciplined in the judiciary during the authoritarian period. In the meantime, under legal formalism and legal stability, judges are not likely to initiative reform of judicial institutions if they do not strongly resist judicial reform. It would be naïve to expect that judges will conduct a self-critique and reform themselves. There are several notorious cases in which judges either helped authoritarian politicians and authoritarian parties maintain their power or played a role in the breakdown of democratic regimes. German judges initiatively legitimized Hitler’s power and the holocaust (Muller 1991). In Chile, the Supreme

Court gave a green light to the military to carry out a coup d’état after the justices had experienced several conflicts with Salvador Allende. The court also legitimized the subsequent military regime (Prillaman 2000:140; Barros 2002). Even regarding the

5 United States, which has powerful judicial review, many judges who believed that slavery was injustice did not claim it unconstitutional. On the contrary, they used several legal mechanisms to evade their moral duties and dilemmas (Cover 1975). In short, to expect judges to reform society is too high an expectation; and yet, to expect that they should initiate reform themselves is too naïve.

THE CASE OF TAIWAN

The dynamics of Taiwanese judicial independence reform came from an unexpected source: the district judges and prosecutors at the bottom of the judicial hierarchy. The case of Taiwan is spectacular. First, Taiwan’s judiciary reflects the great influence of Japan’s and Germany’s. To some degree, we can put Taiwan in the civil law tradition. In this tradition, “judicial service is a bureaucratic career; the judge is a functionary, a civil servant; the judicial function is narrow, mechanical, and uncreative” (Merryman 1985:38). Second, like the case of Japan (Ramseyer and

Rasmusen 2003), the case of Taiwan presents a situation in which political parties and politicians control the judiciary and discipline its personnel not by strict appointment examination but by controls internal to the judiciary, particularly the control of promotion (Guarnieri 2001; O’Brien and Ohkoshi 2001; Shetreet 1985). The district judges and prosecutors at the bottom of the judicial hierarchy come under the most control. However, in the case of Taiwan, the main leaders and the main activists have been district-court judges and prosecutors. They not only initiate reform of the corrupt and controlled judiciary, but their reform strategies are very innovative, as well. Most important is that almost all of their reforms have been successful. Compared to other third-wave democracies (Dakolias 1995-1996; Prillaman 2000; Hammergren 1998;

6 Domingo and Sieder 2001), the case of Taiwan is unbelievable. It is very difficult to find that district-court judges in third-wave democratic countries initiate reform actions. Japan is a useful object of comparison. Japan’s judicial system has greatly affected Taiwan’s because Japan ruled Taiwan for fifty years. The court structure and the legal education in Japan are similar to those of Taiwan. However, the Japanese judges who joined the left and the reform-minded organization that was called the

Young Jurists League often obtained positions in rural areas and received fewer and less substantive promotions. If these appointees criticized the judiciary or ruled against the Japanese in some politically sensitive case, the court might punish them (Abe 1995; Miyazawa 1994; Ramseyer and Rasmusen 2003). More important, reform-minded judges in Japan do not play very important roles in the

Japanese judiciary.

I will show that there are several major differences between the judicial-independence reform movement of Taiwan and those of other third-democracies. First of all, unlike many countries’ judicial-independence theories and experiences that emphasize the importance of politicians or international organizations, the corresponding theories and experiences unique to Taiwan rarely have politicians play important roles in the process of Taiwanese judicial-independence reform. The second difference concerns the fact that judges carried out Taiwan’s judicial-independence reform within the judiciary. Third, these reform-minded judges and prosecutors have come from almost the bottom of the judicial system: District Courts and District Public Prosecutors Offices. Fourth, the reform minded judges’ and prosecutors’ reform strategies are very innovative. For example, they have integrated the ideas of democracy and of the rule of law into

7 reform-movement strategy to mobilize and persuade their fellow judges. In short,

Taiwan’s judges and prosecutors from the bottom of the judiciary built a road to judicial independence.

HOW TO STUDY JUDICIAL INDEPENDENCE REFORM

Although there are a great many normative studies on judicial independence (for example, Burbank and Friedman ed. 2002; Fiss 1993; Kahn 1993; Russell 2001;

Shetreet and Deschênes ed. 1985), it is not easy to conduct empirical studies of judicial independence. “Judicial independence is a relative rather than absolute concept” (Rosenn 1987:3; also see Cohen 1969:972-75). Judicial independence is extraordinarily difficult to ascertain or measure (Rosenn 1987:8; see also Larkins

1996). Larkins offers another fruitful overview of this subject:

The first key to this approach is to look for evidence of dependence instead of independence…. Too often scholars look for independence when it is quite likely that in its pure form it does not exist anywhere. Judicial dependence, by contrast, exists in virtually every political system and is much more easily identifiable. (1996:619)

In this paper, I will focus on how Taiwanese judicial reform has weakened the KMT’s control of the judiciary. It is, in large part, through these judicial reforms that reform-minded judges and prosecutors overcame the obstacles toward judicial independence.

I will first describe some failed judicial actions that preceded the first judicial-reform success, which occurred in in 1993. These failed judicial actions had important political effects and sowed the seeds for the future reform, although the reformers failed and were punished. Then, I will discuss how judges and prosecutors reformed the judiciary from the inside. The first reform in

8 the judiciary took place in the lawyers’ associations (Winn and Yeh 1995; Hu

1994:205-259). However, lawyers’ reforms have posed the least danger to the KMT regime. On the contrary, the prosecutorial system has come under strict KMT control and has consequently been one of the most difficult institutions to change. However, when prosecutors started resisting the KMT’s control, they significantly undermined the KMT.

Like the data for other comparative judicial politics studies,2 the data for these issues are difficult to collect. I collected most of this study’s data mainly through in-depth interviews. The interviewees were mainly activists in and leaders of judicial reform in Taiwan and included judges, prosecutors, lawyers, social-movement organizers, and politicians. I did not tape the interviews because of a general sensitivity to privacy issues and to possible legal problems, but I took extensive notes during the interviews. The length of most interviews was two to five hours, and the longest was nine hours. In order to earn the trust of the interviewees and to avoid any problems that interviewees might face because of this study, I have kept them anonymous. My research method is similar to Perry (1991), who studied the mechanism on which the US heard cases. Perry discusses the dilemma of this research method: should the researchers identify interviews in order to tell a more interesting story or should the researchers keep their promise and preserve interviewees’ anonymity (p. 266).

THE MARTYRDOM PERIOD

The judiciary may be the most conservative institution in Taiwanese society.

Almost all areas of Taiwanese society, including political-reform movements,

2 Please see Larkins (1996) and the debate between Tate & Haynie (1993, 1994) and Gillman (1994).

9 environmental movements, student movements, worker movements, and the media,

started changing before or around 1987. The judiciary did not make much progress

until the end of 1993. Nevertheless, there are several related pioneers whose failed

actions enlightened other judges and prosecutors who became activists in the later

judicial-reform movements.

There were three major conflicts within the judiciary between 1987 and 1993.

There are several common characteristics among these conflicts. First, all the actions

resulted in failure. Second, all the reformers in these conflicts were young judges and

prosecutors whom had not been disciplined to a great degree by the judiciary. Third,

the judiciary punished all of them, and these punishments included forced resignations.

Finally, these conflicts have received significant exposure due to the freedom of the

Taiwanese press. These conflicts enlightened not only citizens but also many judges

and prosecutors. I will describe these conflicts in chronological order.

The most notorious conflict was the Wu and Su case. No other case was more

dramatic than this one. In the early morning of January 11, 1989, Kao Hsin-Wu, a

young , arrested Wu T’ien-Hui, who was the chairperson of the fourth

department of the and his wife, Su Kang, a lawyer. They were charged

with bribery and corruption. Wu and Su tried to bribe and harass Kao’s colleague,

Chen Sung-Tung, in order to influence the outcome of the litigation. Although Chen

repeatedly refused their offers, Wu and Su kept harassing him to force him to accept

the bribe. At one point Su is even reported to have said “I do not believe that judges

and prosecutors do not accept bribes” (Lu N.D. 181).3 Chen told this to Kao. After

3 However, her statement is closer to the truth than it might appear. One prosecutor said that it was probably the case that more than 80% of prosecutors and judges accepted bribes during the authoritarian period. The prosecutor had witnessed a lawyer put a bribe into the desk of his colleague in their office (Interviewee 116). Several interviewees have expressed similar opinions (Interviewee 65; Interviewee 66).

10 considering the situation for several days, Kao decided to arrest Wu and Su without giving any notice to his superior. It is somewhat ironic that Wu was in charge of the discipline and ethics of judges, and that the day they were arrested was Judicial Day in Taiwan.

The prosecutorial system tried to block the investigation but failed. Kao indicted

Wu and Su. During the trial, the chairperson of District Court, Huang

Chin-Jui, tried to illegally influence the trial. Finally, Wu and Su were acquitted. The next day, four judges in Hsinchu District Court resigned in protest of the verdict. One day later, three investigators in the case also resigned. Three months later, Kao resigned. The importance of this case cannot be overestimated in terms of the role it played in shedding light on the rampant corruption within the judicial system.

The main opposition party to the KMT, the Democratic Progressive Party (DPP), has tried to attack and reform the corrupt and controlled judicial system (Hsieh 1987).

However, the DPP has had little, if any, effect on the judiciary. Critics often accuse the DPP of limiting judicial independence for political gain—that is, for anti-KMT objectives. The Wu and Su case demonstrates otherwise. Exposure of the judicial scandal and the underlying judicial corruption came from within the judiciary. The case exposed this problem to many young judges and prosecutors who later became involved in judicial reform (Interviewee 65; Interviewee 66; Interviewee 95).

The second case is that of Hsiao T’ien-Chan. Hsiao was the Minister of Justice.

In 1989, a young prosecutor, Peng Shao-Chin, investigated Hsiao in relation to charges that he illegally lobbied for a golf course. Peng received no assistance from

District Prosecutors Office. The District Attorney prevented Peng from using any staff, including secretaries and drivers. In the meantime, he and other people felt that his

11 life was in danger. Finally, The District Attorney ordered him to turn the case over to

another prosecutor. He turned the case over to another prosecutor with tears in his

eyes before the assembled media. Hsiao was not charged with any crime. However,

under pressure from the media, Hsiao was forced to resign. Peng was a promising

prosecutor, but after this case, the prosecutorial system isolated him, and he

eventually chose to go to Germany to pursue a doctoral degree. When he returned, his

isolation remained in effect. Like Kao, Peng was eventually forced to resign.

The third case is from the court system itself. Before this case, verdicts made by

a “non-full judge”4 went to the chairperson of the court for review before their announcement.5 In 1991, one young judge, Hsieh Shuo-Jung, wiretapped a

conversation in which the chairperson of District Court tried to influence her

verdict on a case after the chairperson had reviewed it. Hsieh refused to change her

verdict and gave the tape to a newspaper. However, after the media reported the case,

the Judicial Yuan punished Hsieh and her supervisor, who had suggested that she

wiretap the conversation. Under pressure from the public, the Judicial Yuan changed

the regulation: the verdicts still have to go to the court chairperson for review after

judge sentence cases. This review policy remained unchanged until judges triggered

another wave of reforms in 1995.

4 Like other civil law countries, Taiwan has a career judge system. After passing examinations, students accept training for about one and one half years in the Judge and Prosecutor Training Institute. Their grades will decide (1) whether the judiciary will assign them to the position of judge or to the position of prosecutor and (2) in which district court or prosecutor’s office they will serve. After being trained, they gain the rank of a semi-judge or semi-prosecutor. If this phase in their career goes smoothly, the judges and the prosecutors can apply for review to become a quasi-judge or quasi-prosecutor after four years. After one more year, they can apply for another review to become a full judge or prosecutor. The Taiwan constitution does not protect the status of non-full judges and non-full prosecutors. In the meantime, non-full judges and non-full prosecutors cannot apply to become a lawyer. It was very difficult to pass the bar exam before 1989. For a discussion of the role of the Judge and Prosecutor Training Institute in Taiwan, refer to Liu (2002) and Kuo (2003:chapter 6).

5 There are several reasons why chairpersons of the courts would review a non-full judge’s verdict. One of the reasons is that the chairpersons have to make sure that there are no typographical errors in the verdict.

12 Although the judiciary forced two prosecutors to resign and punished two judges,

all the would-be reformers received some support from the media and the public.

Prosecutor Kao was even praised as a “judicial hero.”6 However, the judiciary did not

change substantially, if at all. There were no serious conflicts within the judiciary

during the authoritarian period because few judges and prosecutors dared to publicly

resist illegal interference from their bosses or the KMT. In short, I have cited these

conflicts to show not that the KMT exercised total control of the judiciary but that a

new generation in the judiciary has begun working to change the judiciary.

REFORM IN THE COURT SYSTEM

The DPP’s criticism of corruption in the judiciary has had little effect therein.

Court reform began from the inside the court system in Taichung District Court at the

end of 1993. As I mentioned earlier, the two major avenues through which the KMT

can control the judiciary involve cases and personnel. And in effect, personnel control

facilitates case control. I will describe how judicial reform broke down improper and

illegal case control and personnel control in Taiwan.

Case-assignment Reform

Before 1993, the chairpersons of the courts would decide case assignments at the

end of every year, even though there was a sixty-year-old law according to which all

judges in the Judicial Council were to decide case assignments. These chairpersons

could easily assign important cases, particularly ones involving politics or charges of

6 Besides these three cases, Prosecutor Hsu Ar-Kuei investigated a corruption case related to the Minister of Transportation, Chang Chien-Pang, in 1991. Chang was forced to resign, although he was not indicted on any charge. Shiu was punished by the . Like Kao, she became a judicial heroine.

13 corruption, to particular judges whom the chairpersons—and therefore the ruling

party—could trust. In order to obtain more bribes from defendants, judges might bribe the chairperson who would assign the judges to important sections which are in charge of important cases.7 In the meantime, caseload was a serious problem. Some judges followed the orders of the chairperson just so that the chairperson would assign the judges a lighter caseload.

The first reform that targeted a case assignment was from Room 303 in the

Taichung District Court. Room 303 was the leading source of court-system reform in the following years.8 Judges in Room 303 were younger than thirty five.9 They had

entered the judiciary within the previous three to six years. This duration was

sufficient for these reform judges to understand how the judiciary operated but not

sufficient for them to have been disciplined and corrupted by it.

On December 16, 1993, nine judges held a press conference in which they stated

that the decisions regarding case assignment should belong not to the chairperson of

the courts but to all judges. They also argued that case assignment should be decided

in a democratic manner, and not solely on the basis of the chairperson’s preference or

seniority.10 Their ideas for reform received support from newspapers. Some

7 There is one case in particular that demonstrates how corrupt the process of case assignment can be. Two judges encountered each other unexpectedly at a train station and went their separate ways after a short conversation. They encountered each other unexpectedly again in front of the door of the chairperson’s house ten minutes later. Both of them had brought money with which to bribe the chairperson (Interviewee 61).

8 The core members in Room 303 and other important members related to it were fewer than ten persons.

9 The leader of Room 303 was Lu Tai-Lang. Lu was the first prosecutor to search the KMT county branch for a vote-buying case in 1990. He, with other young judges, started the case-assignment reform nine days after the judiciary transferred him to Taichung District Court. After this reform, Lu helped to bring about several important judicial reforms. He was one of the most important persons in Taiwan judicial reform.

10 Seniority is very important for internal control in the Taiwanese judiciary.

14 journalists called this reform the “Judge’s self-government movement.”

On December 29, after several hour-long debates and quarrels and four separate votes, the judges in Taichung District Court voted 43 to 34 to pass the resolution stating that all judges in judicial councils would decide case assignment.11 Judges in other district courts followed the steps of Taichung District Court and asked for a change in the method of case assignment. After this reform, Room 303 in Taichung

District Court became the both the motor and the fuel for judicial reformers in the coming years.

Reforming Personnel Review Council of Judge

The success of case-assignment reform could not guarantee judicial independence if personnel-based control did not submit to a parallel line of reform.

Peter Russell agues that the “danger point for judicial independence may be more in the process of promotion and career advancement than initial appointment”

(2001:16-17). This problem of judicial-personnel control is serious in Taiwan because the initial appointment is relatively easy to accomplish. If someone can pass the judicial exam and the training, that person will likely obtain a position as judge or as prosecutor. 12

There was a clear “promotion map” in the Taiwanese judiciary. The positions of

courts in big cities were better than those in rural areas, and positions in the north

11 One judge who was against this reform even went so far as to say that the judges who proposed the motion were “full of shit.” For the minutes of the historical meeting, refer to Lu (1994).

12 This does not mean that the KMT did not control the judicial exam. The oral exam was a part of the judicial exam during the authoritarian period. It was impossible for someone with an anti-KMT ideology to pass the exam (Interviewee 99; Winn and Yeh 1995:576-578). Also, some aspects of the training were similar to certain aspects of military training. The Judge and Prosecutor Training Institute could also change students’ grades, which would determine their assignment. The Judge and Prosecutor Training Institute employed a few members from the intelligence apparatus to investigate and monitor students.

15 were better than those in the south. In general, the position of City’s courts was

second to none. The judiciary also had a rigid hierarchy. If a young judge was

assigned to a court in a rural area and then tried to gain reassignment to a better

position in the courts, he or she had to take a number of steps. First, the judge had to

pass two reviews to become a full judge. Then, the judge had to gain promotion to the

position of high-court judge or of district-court section chief, and either climb the

ladder to the Highest Court or work to become the chairperson of a district court.

Judges’ caseloads were not equal. In the district courts, if one judge gained promotion

to the position of section chief, his or her caseload became one-eighth to one-sixth

lighter. The chairpersons of courts did not need to rule on any case. Their job was to

do administrative work. More important, if someone gained promotion to the position

of section chief or of court chairperson, he or she could hold that position or a better one for a long time. Put in an exaggerated but telling way, some section chiefs or court chairpersons were “Ten-thousand-year” appointees. If judges wanted to gain a

promotion, they had to first obtain endorsements from their court chairpersons. These

chairpersons could also review and grade judges. The grades could affect whether the

judges got a bonus salary every year and whether or not they got a promotion.

Seniority was a very important factor in the promotion map. Seniority in the judiciary

worked much as it did in the military. One reform judge said, “The promotion map is

judicial independence’s natural enemy” (Interviewee 62).

The Personnel Review Council of Judge in the Judicial Yuan controlled judges’

promotion, punishment, and transfer. In 1994, there were twenty-one members in the

Personnel Review Council of Judge. Eleven out of the twenty-one members were

representatives who had important administration positions, such as President of the

16 Judicial Yuan and Chairperson of the Highest Court, and these members were not elected by judges. The other ten members were elected by judges in courts occupying different levels. However, before 1994, the so-called elected members, in fact, were chosen by the chairpersons of the courts.

In 1994, three reform-minded judges in the district courts campaigned for, and won, three respective seats. In the following years, almost all the reform-minded judges who campaigned won elections. Before the reform-minded judges won seats in the Personnel Review Council of Judges, its meetings and operations were secret. No one outside the administrative personnel in the Judicial Yuan knew how the Personnel

Review Council operated. It was, at best, a rubber stamp that the Judicial Yuan used to pass judgment on all personnel cases.

When the reform-minded judges won seats, the situation started changing, even though they were still a minority. In the following years, there were quarrels in the meetings of the Personnel Review Council. Reform-minded judges in the Review

Council boycotted any suspected cases. One judge described the conflicts in the meeting in these terms: “the blood that flowed became a river.” These reform-minded judges were not able to nominate any candidates for promotion or transfer. However, they did block the promotion of many unqualified or corrupt judges. This situation came to a halt when Judge Lu Tai-Lang, one of the most important leaders in judicial reform, became the director of the Personnel Department in the Judicial Yuan in 1998.

This department dealt with personnel issues and sent personnel cases to the Personnel

Review Council for approval. Lu executed the policy that mandated that section chiefs have terms. More than fifty so-called “ten-thousand-year” section chiefs were removed from administration positions.

17 In addition to the Personnel Review Council’s reform of judges’ career paths,

there were two actions that helped break down the promotion map. One such action

was a 1994 survey conducted by three judges who were members in the Personnel

Review Council, in which judges in district courts reviewed their chairpersons and

sent the results to the President of the Judicial Yuan. Almost all the chairpersons in

the district courts failed to obtain a passing grade. The average grade was 54.5/100.

The lowest grade was 21.9/100 ( Times 9/27/1994, page 7). Several

chairpersons retired not too longer after the survey was finished. The other action

centered on judges’ election of some candidates for section chief—candidates who

were from that very pool of judges (United News 11/15/1994, page 2). The judges no

longer needed chairpersons’ endorsements to gain promotions. These three reforms

successfully broke down the promotion map.

The institutional hindrance to judicial independence was almost totally removed.

This liberation of sorts made it extremely difficult, if not impossible, for either the

Judicial Yuan or the KMT to interfere in litigation through institutional control,

although judges might still accept bribes or engage in other forms of

individual-oriented corruption. Several judges and lawyers have given high praise to

the achievements of the judicial-independence reforms (Interviewee 59; Interviewee

62; Interviewee 94; Interviewee 95).13 Perhaps the career of Judge Huang Chin-Jui best exemplifies the strengthening of judicial independence in Taiwan.

Huang participated in the trials of two important political cases during the

13 However, the judicial system is far from perfect. Judicial independence is just one of the important issues in the judiciary (Ungar 2002) and not all judges appreciate it (Fiss 1993:57). There are still several severe deficiencies in the Taiwanese judiciary. One of them is the lack of a proper institution that can make the judiciary accountable to the public.

18 authoritarian period: the Formosa Magazine Event Case14 and the Chiang-Nan Case.15

He had gained promotions more quickly than most of his peers. In the martyrdom period, he was the chairperson of Hsinchu District Court during the Wu and Su Case happened, and he intervened therein. Afterward, he gained promotion to the position of chairperson of Taichung District Court, where he encountered the reform judges, who were asking for case-assignment reform. When he sought promotion to the position of chairperson of Hualien , three reform judges blocked his case.

These three judges were attending the Personnel Review Council of Judge for the first time. Although Huang’s case was shelved by a vote,16 the Judicial Yuan and the

Control Yuan started investigating allegations that he had engaged in corruption, and

thereafter, he was charged with, tried for, found guilty of, and punished for making

illegal investments. He could not gain promotion to the position of chairperson of the

Hualien High Court, and no departments in the judiciary wanted to accept him.

Finally, he obtained an official position as a member of the Committee on the

Discipline of Public Functionaries. He was temporarily transferred to an unimportant

position in the Ministry of Justice because other members of the Committee on the

Discipline of Public Functionaries did not accept him. Huang never again played an

important role in the judiciary.

There is another case that can be seen as indicative of the KMT’s loss of control

over the court system. In the authorization period, the KMT sometimes nominated

14 The Formosa Magazine was one of the major magazines of the Outside the Party Movement. It held a parade for human rights on December 10, 1979. A conflict broke out during the parade. Almost all of the important leaders of Outside the Party were arrested after this event. For more information on this event (the Incident) and its effects on Taiwanese democratization, refer to New Taiwan Research Foundation (1999a, b).

15 Chiang Nan (Henry Liu) was a double agent for Taiwan and the United States. He wrote a biography of Chiang Chin-Kuo. Liu was killed by members of the Bamboo Gang who accepted an order from Taiwan’s intelligence apparatus in 1984. For more information on the case, refer to Kaplan (1992).

16 Personnel Review Council of Judge passed almost all the cases without a vote.

19 judges and prosecutors to campaign for governmental positions or seats in the

legislature. After democratization, there was a regulation that forbade judges from

participating in elections, including party primaries. Two judges took part in the

KMT’s and the DPP’s party primaries, respectively. And the Personnel Review

Council of Judge punished both of the judges. In this case, some KMT and DPP

politicians tried to influence the punishment cases but the Judicial Yuan rebuffed

these efforts (Interviewee 98).

Although case-assignment reform and personnel reform were successful, the

personnel structure did not change radically. The institutions did change, but only a

few judges left the judiciary. The majority of the reform judges and their supporters

were from district courts. Grand Justices and judges in high courts and the highest

courts were still less reform-minded. In the meantime, these reforms in the court

system may not have substantially changed relations between the executive,

legislative, and judiciary branches of government.

The court system was less dangerous to the KMT regime and its politicians,

including clientelist elites. As long as prosecutors did not prosecute politicians, there were no cases entering the courts. Therefore, the KMT controlled the prosecutorial system to a greater extent than the KMT controlled the court system. Prosecution reform was much more difficult, and took place later than the court-system reform.

The court-system reforms faced little resistance from the KMT; however, the KMT stalled prosecution reform several times. Nevertheless, the new-generation prosecutors’ reforms would do a great deal of damage to the KMT’s regime.

Although the court system was less dangerous to the KMT than the prosecution system, a more independent court posed a significant threat to the KMT regime. Two

20 reform judges in district courts found two important KMT politicians, Taichung City

Mayor Lin Po-Jung and Executive Wu Tse-Yuan, guilty of

corruption. It is certain that if the court reform had not succeeded, the courts would

not have assigned these two cases to the two reform judges.

REFORM IN THE PROSECUTORIAL SYSTEM

The Emergence of the New Generation

Unlike the court reform, which focused on the institutional reform from the beginning, the prosecutorial reform did not focus on reform of institutions, despite the name of the reform. In the beginning, young prosecutors overcame several obstacles to investigate and prosecute many corrupt politicians, most of whom were members of the KMT. I will first discuss two important cases that occurred before the young prosecutors pursued institutional reform. Then, I will discuss how the KMT tried to retaliate. In the end, I will discuss how the young prosecutors’ collective actions weakened the KMT and the Ministry of Justice’s institutional control.

Perhaps two cases best illustrate the fact that some young prosecutors, rather than follow illegal orders, followed the laws in prosecuting important cases related to elections and to the KMT’s local politicians. The first case was that of the prosecutor

Lu Tai-Lang,17 who investigated an incident of vote-buying related to the KMT

Taichung County Branch and Taichung County Executive Liao Liao-Yi in 1990. It

was the first time that a prosecutor searched a KMT county branch. Although

prosecutors could summon investigators from the Bureau of Investigation, they could

not allow investigators to cooperate with prosecutors if cases were political in

17 Lu later became a judge and one of the important leaders in the reform of the court system.

21 nature.18 When Lu wanted to search the KMT Taichung County Branch, he

summoned several investigators, but did not inform them of the nature of the case.19

When he arrived at the KMT Taichung County Branch, a low-level KMT party

official shouted at Prosecutor Lu, “How dare you search the KMT party office?” and

did not cooperate with him. The KMT party officers did not let Lu search their office,

arguing that because the chairperson was not in the office, the search lacked

justification. Lu requested that they contact the chairperson or the higher ranking

party officials as soon as possible. The low-level KMT party officers apparently lied,

saying that they were not able to contact the chairperson or any high ranking party

officials. After a two-hour stalemate, Lu attempted to begin searching on his own, at

which point the KMT party officials blocked the search. Lu told them that if they

continued to block the search, they would be arrested immediately as criminals.

Not long after Lu began searching the KMT office, he got a call from his

superior, the district attorney. His supervisor told Lu that he had just received a call

from the chairperson of the KMT Taiwan Province Office, who had informed him that

Lu was searching the KMT office. The district attorney asked Lu to “just take a look

and come back.” Lu did not stop the search, even after he received the call from his

superior.20 At the beginning of the investigation, Lu had told no journalists about the case. It was the officials in the Taichung County government who told journalists

18 The Bureau of Investigation in Taiwan is under the supervision of the Ministry of Justice and the Bureau of National Security in the Presidential Office. Its role as an intelligence apparatus is much more important than its role as a criminal-investigation unit. Although the Bureau of Investigation is a sub-unit under the Ministry of Justice, the President, not the Minister of Justice, decides who will be the director of the Bureau of Investigation.

19 One prosecutor ordered several investigators to search the house of one son of an important KMT politician. All investigators were recalled on the way to the house when the Bureau of Investigation learned about the details of the case (Interviewee 62). 20 Lu felt alone in acting against the system, and did not get much help from others during the investigation. He also felt that his life was in danger. When the case was over, he thought that he was lucky “to still be alive.”

22 about it. Then, the case went public. Lu ended up prosecuting several KMT party officials and local politicians.

The second case concerned an instance of electoral fraud. The KMT had a long history of committing electoral fraud (Chan 1999; Interviewee 119). However, KMT politicians and party officials were never prosecuted for electoral fraud.21 Even in

1989, when the DPP candidate for Tainan County Executive and his supporters not only protested that the KMT had committed electoral fraud but also broke into the office of the County Election Commission, district prosecutors office did nothing, even though, for a time, several thousand protesters occupied the only highway in

Taiwan as a sign of demonstration against the KMT’s electoral fraud. Prosecutors conducted no serious investigation into this case.

In 1992, Taiwan held elections for legislators. Huang Hsin-Chieh, the chairperson of the DPP at the time, was a candidate in . Few people expected that Huang would win one of the two seats in the district, as it was a

KMT-controlled area. The DPP expected that Huang’s campaign might serve as “an oasis in the desert.” However, Huang received more votes than expected, and the number of votes he received was very close to the number of votes received by the candidate who won the second seat. Huang was planning to return to his home in

Taipei on the night of the election. However, by that time, rumors of electoral fraud had begun to surface.

As in the 1989 case, Huang and the DPP supporters went to the County Election

Commission to protest and to ask for a recount of the votes and for an investigation into possible electoral fraud. The officials of the County Election Commission did not

21 For a vivid description of two cases in which the KMT used the judiciary to protect electoral fraud during the authoritarian period, refer to Lin and Yao (1977) and Yao and Lin (1978).

23 dare to issue a decision and asked Huang to talk to prosecutors. Then, Huang and

several thousand supporters went to the District Prosecutors Office. The office held

only two young prosecutors, Hung Cheng-Ho and Lia Ching-Hsiang.22 However, these two prosecutors thought that it was the County Election Commission’s duty to deal with such cases. Consequently, Huang and his supporters went back and forth between the County Election Commission and the District Prosecutors Office several times. One night during these travails, the two young prosecutors could contact neither their superior, the chairperson of the High Prosecutors Office, nor the Minister of Justice. Apparently, the superior’s and the minister’s cell phones were turned off and they did not want to take the responsibility for this case. Eventually, after serious quarrels, Huang and the District Prosecutors Office decided that there would be a recount of votes from Hualien City, not from the whole district.

All the candidates sent representatives to monitor the recount. Prosecutor Hung made a key decision to open the recount process to the journalists.23 The recount proved the existence of electoral fraud. The number of votes recounted was greater than the number of voters who voted. Someone had inserted a number of illegal votes into a few of the booths. In the following days, other prosecutors in the Hualien

District Prosecutors Office took a rest because of the holidays. Without any help from the others in the prosecution system, Hung and Lia began to investigate the case during the holidays and found that some of the people related to the KMT candidate who had won the second seat had committed electoral fraud. Because they devoted so much time to this case, Hung and Lia left many other criminal cases unresolved. For

22 Hung was assigned to Hualien District Prosecutors Office for just one-year and Lia for one month. Both of them were under the age of thirty at the time.

23 Some high-ranking officials in the prosecution system were not happy with Hung’s decision (Interviewee 113).

24 this infraction, the Ministry of Justice censured the two prosecutors. Without the two

prosecutors, the first prosecution of KMT-inspired electoral fraud would have

remained for someone else to undertake.

The attitude of prosecutors like Lu, Hung, and Lia may not reflect the prevailing

attitude in Taiwan’s District Prosecutors Offices, but these reform-minded prosecutors

are certainly not exceptions. In their capacity as prosecutors, they encountered and

opposed KMT clientelist elites. The prosecutors indicted many KMT clientelist elites and their brokers on charges of corruption and vote-buying.

Attacks from the KMT

The KMT launched three attacks on prosecution reforms. The first attack was the

KMT’s attempt to negate the prosecutors’ power of issuing committal warrants. On

July 14, 1994, the wanted to pass a new law stating that only district attorneys, not general prosecutors, had the power to issue committal warrants. All prosecutors had the power to issue a committal warrant in relation to any suspect except the President. Prosecutors could detain a suspect for as long as four months without any interference from the courts. To detain a politician or his or her brokers was to seriously damage their political careers. As the KMT gradually lost control of the prosecutors in the District Prosecutors Offices, the reigning party wanted to concentrate the power to issue committal warrants in the district attorneys. In Taiwan, there were only twenty-two district attorneys. It was far easier for the KMT to control them than to control the several hundred prosecutors in the District Prosecutors

Offices. The DPP politicians criticized this new law, declaring that it was a KMT attempt to block vote-buying investigations of prosecutors in the District Prosecutors

25 Offices.

Many prosecutors in the District Prosecutors Offices and judges in local courts,

as well as the press, criticized the legislation. However, the KMT constituted a

majority in the Legislative Yuan. No one could stop the legislation unless it was

unconstitutional. The DPP legislators bought this case to the Constitution Court in the

Judicial Yuan. However, it was the actions of the reform judges in Room 303 of

Taichung District Court that forced the Judicial Yuan to agree to review this case.24

Judge Kao Szu-Ta stopped a trial in which prosecutors had detained a suspect. Judge

Kao brought this case to the Constitution Court in the Judicial Yuan. The Constitution

Court found the legislation to be unconstitutional and stated that only the courts, and not the prosecution, had the power to issue committal warrants. If the KMT wanted to use the warrant for political purposes, it would have to get cooperation from both the court system and the prosecutorial system. Although it was not impossible for the

KMT to use the warrant for political purposes, it was more difficult than before, particularly as the court system was more independent than the prosecutorial system.

The second attack was directed not against prosecutors in the District

Prosecutors Offices, but against the Minister of Justice, Ma Ying-Chiu. Before Ma, the position of Minister of Justice had not retained great political importance in the

KMT. Ma encouraged prosecutors to investigate corruption, illegal drugs, and vote-buying, although he could not totally understand and control the prosecutorial system. He had neither direct experience in the system nor substantial indirect contact

24 A DPP politician had brought a similar case to the Constitution Court, which rejected it. In the meantime, although Judge Kao brought this case to the Constitution Court, judges in Room 303 discussed and planned the action. If DPP prosecutors—rather than Judge Kao—had brought the case before the court, the Constitution Court would have probably rejected the case. However, one has to keep in mind that judges in Room 303 had an ambivalent view toward whether prosecutors should have the power to issue committal warrants. The power to issue committal warrants might help reform-minded prosecutors investigate cases of corruption (Interviewee 95).

26 with it. He was, however, the third most powerful person in the system.25 His policy encouraged many prosecutors to investigate vote-buying and corruption. One prosecutor said, “In the past, prosecutors were sleeping tigers in a cage. Ma opened

the door of the cage, although he might not have understood whether there were some

tigers inside” (Interviewee 101).

The most serious conflict between Ma and the KMT clientelist elites occurred in

a case concerning vote-buying in the 1994 elections for chairperson and

vice-chairperson in the County Assembly. When Ma announced his decision to

investigate vote-buying in elections, few people took it seriously, and some regarded

it as a joke. Most district attorneys failed to act until Ma threatened to ask district

attorneys to step down if their offices could not successfully investigate these

vote-buying cases. In six months, prosecutors indicted 257 assemblymen in 16 out of

21 County Assemblies in Taiwan Province. Of the 257 prosecuted assemblymen, 190

were members of the KMT, 60 were independent, and 7 were members of the DPP

(Chen 1995:250).26 The prosecutions of these vote-buying cases were the most significant to date.

These prosecuted assemblymen were local clientelist elites. Ma’s actions angered the elites and their factional leaders. Furthermore, these elites were unsatisfied with

25 Chen Han and Liu Ching-Yi, who were chairpersons of the High Prosecutors Office, were more powerful than Ma. One interviewee observed that Chen closed his eyes and rested when Ma was speaking in a meeting (Interviewee 101). Liu still attended the KMT Central Meeting, even though Ma had warned that anyone in the Ministry of Justice who attended any activity put on by a political party would suffer censure. Liu received an oral warning, but did not care about it.

26 However, not all defendants’ cases resulted in findings of guilt by the District Courts. One of the reasons was that some district attorneys were not sure of the intentions of either the KMT or the Ministry of Justice, and when the attorneys prosecuted assemblymen, the attorneys did not present all the evidence to the court. The attorneys would decide whether they would provide more evidence only after they understood both the political intentions of the KMT and those of the Ministry of Justice (Interviewee 101). That is, some district attorneys knew that the cases would result in verdicts of not guilty before they sent these cases the courts.

27 the KMT, which could not easily and successfully interfere in these cases. Many local

elites publicly criticized Ma and asked the KMT to force Ma to step down. Some local

elites even threatened that they would not campaign for the KMT candidates. Ma was

later transferred from the position of Minister of Justice to that of Minister without

Portfolio.

Liao Cheng-Hao, who succeeded Ma as the Minister of Justice, carried out the

third attack on prosecutors. Unlike the two other attacks, the third attack, which was

aimed directly at eight maverick prosecutors, was the most notorious and inhumane.

In 1996, the Minister of Justice reassigned eight prosecutors without their consent.

None of the eight prosecutors received any notice before the announcement of their

reassignment. It was the first time that the Ministry of Justice had attacked several

prosecutors at the same time.27 The processes of the reassignments differed greatly from the normal process. Two of the prosecutors in the Taichung District Prosecutors

Office were investigating another corruption case involving the KMT Taichung City

Mayor. Four prosecutors were in the Taitung District Prosecutors Office and had

prosecuted the powerful politician’s brokers and investigated his vote-buying. The

other two prosecutors were the leaders of young prosecutors in the Pingtung District

Prosecutors Office and had prosecuted several of the KMT politicians. The Pingtung

District Prosecutors Office’s prosecutions created discontinuity among clientelist elites in Pingtung.

Prosecutors Reform Association

In 1998, the Judicial Reform Foundation pushed the Legislative Yuan to pass the

27 Before this, the Ministry of Justice once attacked a particular prosecutor and forced the prosecutor to resign.

28 Judge Law. If the Judge Law passed, prosecutors would lose their status of judge, and

the office would become an administrative one. Consequently, prosecutors would

encounter greater difficulty in investigating cases, particularly corruption cases, which

had become more serious recently, and Ministry of Justice would more easily control

prosecutors. The Judge Law would be a revolutionary change. However, the Minister

of Justice, Liao, was not concerned over whether there was a change in the system.

Liao had been the director of the Bureau of Investigation before he became the

Minister of Justice. As long as he could control the Bureau of Investigation, he could

control investigated cases, even if prosecutors lost power. In fact, the prosecutors’ loss of the status of judge might help the Ministry of Justice control them (Interviewee

61; Interviewee 99).

The lack of concern on the part of the Ministry of Justice aroused the prosecutors to collective action. On May 4, 1998, thirteen prosecutors organized the Prosecutors

Reform Association, which had four purposes: to maintain prosecutors’ status of judge, to build proper units to investigate cases,28 to build an institution in which

prosecutors elected the chiefs of each section, and to institute prosecutors’ review of

district attorneys (Prosecutors Reform Association 1999). One of the important

leaders herein said that they did not want to be anyone’s political tool or the rubber

stamp of the intelligence apparatuses (Prosecutors Reform Association 1999:11).

They claimed that if they could have proper resources, they would clean up the

corruption in Taiwan (Prosecutors reform Association 1999:1). In two weeks, 391

prosecutors, more than 95% in District Prosecutors Offices, joined the Prosecutors

28 In general, a single prosecutor investigated a case. The district attorney could always assign other prosecutors to work with the prosecutor as a team; however, the prosecutor would lose control of the investigation case. The Ministry of Justice and the District Attorney’s office often used this method to interfere with and control cases (Business Weekly 6/22-28/1998; Chu 2002).

29 Reform Association.29

The most important action of the Prosecutors Reform Association was to participate in the Personnel Review Council of Prosecutor. The Personnel Review

Council of Prosecutor was similar to the Personnel Review Council of Judge, although the former was less powerful than the latter.30 There were seventeen members in the Personnel Review Council of Prosecutor. Six members were elected from among prosecutors in the District Prosecutors Office, one from the High

Prosecutors Office, and one from the Highest Prosecutors Office. The Prosecutors

Reform Association won all six seats in the District Prosecutors Office. The members of the Prosecutors Reform Association who entered the Personnel Review Council of

Prosecutor had two functions for weakening the control of the Ministry of Justice.

The first one was to break down the promotion map in the prosecutorial system.

The Prosecutors Reform Association held an election to recommend and to select prosecutors for the position of chief of each section. Several prosecutors whom the

Ministry of Justice had punished received the most votes. For example, Yang Ta-Chih and Chu Chao-Liang, who were reassigned without their consent by the Ministry of

Justice, received the most votes in their respective districts. Although the results of the election were just a reference, the members of the Prosecutors Reform Association in the Personnel Review Council of Prosecutor boycotted any promotion cases that were not on the recommendation list of the Prosecutors Reform Association. The

Prosecutors Reform Association also used a survey to review district attorneys.31

29 We should not be misled by the number. Some prosecutors joined this organization not for prosecution reform but out of personal interest. If the Legislative Yuan passed the Judge Law, then prosecutors would lose their status as judge and the bonus of being a judicial expert, which accounted for up to one third of their salaries (Interviewee 101).

30 For a comparison between the two councils, refer to http://www.pra-tw.org/pra_2/pra_2_1_2.htm. 31 However, the Prosecutors Reform Association’s elections experienced some subsequent deficiencies. Some prosecutors and district attorneys who wanted to obtain recommendations and good reviews from

30 The second function was to protect maverick prosecutors from punishment by the Ministry of Justice. Several prosecutors reported to the Prosecutors Reform

Association that their district attorneys had tried to interfere in their cases. In the meantime, members of the Prosecutors Reform Association in the Personnel Review

Council prevented any improper punishment of maverick prosecutors. For example, after transferring two leaders of the young prosecutors in the Pingtung District

Prosecutors Office, the Ministry of Justice punished the third prosecutor, Ho

Ko-Chang. Prosecutor Ho appealed. Finally, assisted by members of the Prosecutors

Reform Association, the Personnel Review Council of Prosecutor revoked the punishment.32

THE CHARACTERISTICS OF TAIWAN’S JUDICIAL INDEPENDENCE

REFORM

From the perspective of judicial independence, several characteristics of Taiwan court reform reveal themselves to be of critical importance. First, the major reformers were young judges, generally under the age of forty, in district courts. Second, several reforms pushed by district judges were successful. Third, unlike the past failed prosecutors, these reform judges stayed in the judiciary. In contrast, several corrupt judges resigned or were censured. Fourth, the KMT and the Judicial Yuan did not make much of an effort to resist these reforms. One of the major reasons for which the

the Prosecutors Reform Association tried to establish connections with related prosecutors. In the meantime, several district attorneys who had previously followed the order of the Ministry of Justice to interfere in related cases and to punish maverick prosecutors made the necessary adjustments and obtained good reviews. At the present time, the Prosecutors Reform Association has stopped elections and reviews.

32 There were several quarrels in the discussion of this case in the Personnel Review Council of Prosecutor. One of the members of the Prosecutors Reform Association and a certain member of the Ministry of Justice shouted at each other (Interviewee 115).

31 KMT and the Judicial Yuan did not seriously resist these reforms concerns the KMT’s

sense that if the party could continually and successfully control the prosecution, its

regime would ward of serious oppositional threats. This reason may also explain why

the court and the prosecution reforms have had different results.

There are a few similarities between the court reforms and the prosecution

reforms. The major actors of the two reform movements were from the bottom of the

judiciary. The leaders and the participants of the prosecution-reform movements were

mainly from District Public Prosecutors Offices, not the High and the Highest

Prosecutors Offices. These reformers, like the reform judges, were young and had

been in the prosecutorial system long enough to understand how the KMT and the

Ministry of Justice controlled the prosecution system, but not long enough to be

totally disciplined by and incorporated into it.33

However, there were some differences between the court reforms and the prosecution reforms. First, the prosecution reforms occurred later than the court reforms. The court reforms began in 1993, whereas the institutional prosecution reforms would not begin until 1998. Second, the court reforms faced little resistance from the Judicial Yuan, but the KMT and the Ministry of Justice attacked maverick prosecutors several times and resisted many reforms that reform prosecutors suggested. The KMT’s loss of control over the prosecutorial system was much more dangerous to itself and its politicians. Even if that system prosecuted a KMT politician who was found not guilty, it could damage the politician’s career and the party as a whole. Third, the prosecution reforms made much less progress than the

33 The promotion map in the prosecutorial system is almost the same as the one in the court system. The “Loyal” division in the Taipei District Prosecutors Office was the so-called No. 1 world division. If a prosecutor could enter this division, it was certain that he or she would be promoted to the position of director of the division. Prosecution reform broke down this system’s promotion map, as well.

32 court reforms. Nevertheless, the KMT and the Ministry of Justice lost some degree of

control over the prosecution system and could not use it as easily for political

purposes as in the past. The KMT and the Ministry of Justice often paid a price when

they tried to control and interfere in cases.

Again from the perspective of judicial independence, several major differences

emerge between the case of Taiwan and the cases of other third-wave democracies.

First of all, unlike many countries’ experiences and judicial independence theories

that emphasize the importance of politicians or international organizations (Ramseyer

and Rasmusen 2003; Maravall and Przeworski 2003; Chaveez 2004; Domingo and

Sieder 2001), politicians rarely play important roles in the process of Taiwanese

judicial independence reform. When the opposition attempted to reform judicial

institutions, the KMT and the Judicial Yuan accused it of interfering with the judiciary. In the meantime, the opposition grew exhausted as it defended itself from the KMT’s seemingly inexhaustive legal means. Therefore, after several failures, the opposition no longer focused on the judicial-reform issues. The opposition concluded that satisfactory reform of the judiciary was impossible as long as the KMT was in power and that a better way to reform the judiciary might be to defeat the KMT in elections. Some studies emphasize that the rulers may grant power to the judiciary because the rulers fear that the opposition would use the judiciary to against them if they lose their power (Finkel 2004, 2005; Magalhaes 1999; Ramseyer and Rasmusen

2003; Stephenson 2003). Self-restraining politicians are farseeing politicians.

However, the KMT’s leadership was not farseeing and never thought that it would lose power soon. Therefore, the KMT never carried out any judicial independence reform.

33 The second difference concerns the fact that judges carried out Taiwan’s judicial-independence reform within the judiciary. Taiwan has not been a member of the United Nations and has not had diplomatic relations with many countries.

International organizations playing a key role in the judicial reform in many third world countries have not surfaced in Taiwan. The major activists of Taiwan’s judicial reform have been judges and prosecutors within the judiciary.

Third, these reform-minded judges and prosecutors were, as I stressed earlier, almost from the bottom of the judiciary: District Courts and District Public

Prosecutors Offices. Few judges in the High Court and the Highest Court, and few public prosecutors in the Highest Public Prosecutors Office and in the High Public

Prosecutors Office participated in judicial-reform movements. Though from the lower echelons of the judiciary, the reform-minded judges and prosecutors were—as I stressed earlier, as well—very young. For example, one of leaders of Room 303 in

Taichung District Court, Judge Lu Tai-Lang, was thirty-four years old when he and other judges carried out case-assignment reform. Other core members were younger than forty when they began participating in reform movements. It is interesting to note that only one public prosecutor in the Taiwan High Public Prosecutors Office joined the Prosecutors Reform Association. All other members of the Prosecutors Reform

Association were from District Public Prosecutors Offices.

The fourth characteristic of Taiwan’s judicial independence reform concerned the reformers’ strategies. One of the major strategies of the reform movements centered on “the rule of law.” The movement for case-assignment reform exemplifies this strategy. The rule-of-law strategy translated into an effort not to change the laws but simply to ask that the judiciary abide by the laws. The strategy had several

34 advantages. First, it legitimatized and justified the reform movements. Second, law is

the common language of judges. It could facilitate activists’ attempts to persuade

fellow judges to join or support the reform movement. Third, it also depoliticized the

reform movement. In his analyses of Latin American , William C.

Prillaman (2000) has argued that the nature of judicial reform is a political

construction. The strategy of the rule of law somehow conceals the political

implications of these reform movements. It not only weakens the political elites’ and

the judicial elites’ vigilance but also helps other judges accept the appeals of these

reform movements. Ironic is the fact that the rule-of-law strategy was effective in

Taiwan because the judiciary, there, did not abide by the laws. However, because of

the strategy, the movement for judicial-independence reform did not cooperate with

other social-reform movements. Therefore, the strategy also limited the potential for

radical change in Taiwan’s judiciary and political system.

REGIME SHIFT AND JUDICIAL REFORN (To be completed) ＊ Court on its own road regardless of regime shift ＊ The short honeymoon between the DPP and the Prosecutors Reform Association ＊ The prosecutorial system as a DPP’s unfamiliar issue and the rising of the conservative administrative prosecutors ＊ The birth of judicial politics in Taiwan

CONCLUSION

The judiciary in Taiwan is far from perfect, but it did have a significant effect on

Taiwanese democratic politics. One reform judge, Chang Shen-Hsing, said that “at

least politicians and capitalists are uneasy when they enter the courts now….in

contrast to the past, when they thought that they owned the courts” (Global View 1996:

58). Although court-oriented and prosecution-oriented reforms broke down the

35 KMT’s control over the judiciary, the personnel of the judiciary did not change

substantially. Judges and prosecutors who are in higher and more important positions

received both their training and their promotions during the authoritarian period. The

young and reform-minded judges and prosecutors are slow to receive promotions to

positions of greater importance.

The KMT lost control not only of the judiciary, but also of the agenda for

judicial reform. In 1995, a group of reform-minded lawyers, professors, and social

activists gathered together to form the Judicial Reform Foundation.34 This judicial-reform organization’s purpose was to work against corruption, interference, and incompetence in the Taiwanese judiciary. Their work included the revision of laws, supervision and assessment, legal-reform education initiatives, and follow-up on individual legal issues.

Although the leaders of the foundation were unlike the reform judges and prosecutors, whose actions directly weakened the KMT’s control over the judiciary, the foundation has had several important effects on judicial reform. One is that the

Judicial Reform Foundation has played an important role in the setting of agendas for judicial reform. For example, the foundation has pushed the Judicial Yuan to hold

“the National Judicial Reform Conference.” Many judicial reform programs were proposed in this conference. The Judicial Reform Foundation also drafted the Judge

Law and other laws, and pushed the Legislative Yuan to pass them. An indirect effect that the foundation has had on the KMT’s control of the judiciary concerns the foundation’s request for a judiciary that is accountable, as well as independent

34 These reform-minded lawyers were the main leaders to undertake reform of the Bar Association, which was controlled by the state and the KMT. The lawyers won the election and assumed control of the Federation of the Bar Association. For more information on the reform of the Bar Association, refer to Winn and Yeh (1995:580-584) and Hu (1994:205-253).

36 (Interviewee 126). The foundation has stressed the point that the judiciary and its personnel should be responsible to democratic society, not to political parties. The

Judicial Reform Foundation extends legal education not just to citizens but to judges and prosecutors, as well. In short, it has indirectly weakened the KMT’s control of the judiciary.

Taiwan’s judiciary is close to civil-law tradition. The role of judges and of prosecutors in this tradition is passive and without creativity. Some politicians just treat them as public servants who differ not at all from other governmental officials.

The KMT ruled Taiwan for more than fifty years and, during that time, used various means to control Taiwan’s judiciary—means ranging from legal education and legal training to a promotion system that could discipline or reward judges and prosecutors, according to their fidelity to the KMT. However, some reform-minded judges and prosecutors stood up to pursue the rule of law. Compared to the cases of other third-wave democracies’ judicial independence reforms, the case of Taiwan’s judicial independence reform presents distinct characteristics: namely, young judges and prosecutors who revolted from the bottom of the system in a spectacular display of reform. In this paper, I have tried to identify and explore these salient characteristics of Taiwan’s judicial-independence reform.

“Law cannot but speak through people. Judges must be individuals who possess judgment, wisdom, and character, or the law will be dull-minded, vicious, and oblivious to its consequences” (Tamanaha 2004: 125). I agree with this assertion according to which judges’ character and orientation constitute, in effect, an essential part of the rule of law. However, most studies in the field have ignored the role of

Taiwan judges in building up Taiwan’s rule of law during the recent period of

37 political transition. Let us consider another insightful assertion that applies to the case of Taiwan: “Judges can be independent, yet fail in discharging their most elemental duties because they do not understand the issue before them, lack courage, or are captured by an outworn and antiquated philosophy” (Fiss 1993: 57). The case of

Taiwan shows that judges even in civil-law traditions can use creative strategies to pursue the rule of law and judicial independence. Only when judges regard themselves not as agents of politicians but as strong proponents of judicial independences can the rule of law be possible.

Many people expected that the Democratic Progressive Party (DPP) would carry out prosecutorial reform when regime shift first happened in the 2000 presidential election. The DPP was a victim of judicial un-independence under the

(KMT) regime. The KMT often used law to attack and oppress the opposition. Many leaders of the DPP were lawyers, like President Chen Shui-bian. President Chen and the DPP claimed that they would reform Taiwan’s judiciary. However, Taiwan’s prosecutorial system has been made little progress so far. The instability of political competition forced the DPP and President Chen became nearsighted. President Chen faced impeachment from the KMT and others shortly after the DPP was in power.

The DPP was the minority in Legislative Yuan. Therefore, the most important issue for the President Chen and the DPP was to stay in power for at least one-term presidency, rather than to keep their political promise. In order to maintain their power, the DPP, just following the KMT’s steps, continually tried to, but unsuccessfully, control the prosecutorial system.

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