For conference discussion only. Please don’t cite without permission. Regime Shift and Prosecutorial Reform in Taiwan 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 judicial independence 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 judiciary during political transition. Brian Z. Tamanaha (2004:59) argues that “the legal profession, then, is located at the crux of the rule of law…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 prosecutors, 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.