When Grand Justices Become a Partisan Flank
The Storm Media Editorial, June 21, 2023
President Tsai Ing-wen has insisted on the nomination of all grand justices before the end of her tenure, leaving no nominations for the next president. The Legislative Yuan will review this during an interim meeting in mid-June. The Democratic Progressive Party (DPP) will use their majority advantage to pass this DPP friendly list of nominees. It once again confirms the party’s "double standards."
When she took office in 2016, President Tsai listed judicial reform as one of her major political agendas. After seven years in power, she has not completed much. Instead, she has fostered a large number of "DPP friends" in the legal realm. Among the four people nominated this time include Prosecutor-General Hsing Ta-chao and Secretary-General Chu Fu-mei of the Control Yuan, husband and wife. Lawyer Yu Po-Hsiang once instigated witnesses to give false testimonials. It can be seen that when it comes to Tsai’s employment style, she puts ideology above judicial profession, completely disregards social opinions or sparking controversy.
President Tsai's nomination of all grand justices is another example of the DPP's "double standards." After the Constitution was amended in 1997, the staggered term system for the nomination of justices was established. When then-President Ma Ying-jeou nominated all grand justices during his term, the DPP heavily criticized the decision, and called it a "destruction of the constitution.” Now that President Tsai holds the power, and that the DPP is the majority party in Congress, they are doing so as well.
To make matters worse, the DPP has disregarded procedural justice and turned the Legislative Yuan into a legal bureau. The grand justices not only holds power in deciding the final interpretation of the Constitution, but also has the right to declare laws passed by the Legislative Yuan unconstitutional. During the last two times when Mr. Ma nominated the grand justices, there were at least 62 to 50 days from the date of the announcement made by the Office of the President until the Legislative Yuan vote. While for President Tsai, it was only 54 days and 31 days in the previous two nominations. This time, her third nomination of grand justices, there are only 22 days left for review, one public hearing, and one review meeting. They voted hastily, endorsing the Tsai administration. With such a rushed schedule, how can the people believe that they can really be guardians of the Constitution?
This hasty review of grand justice nominations is just like how the "U.S.-Taiwan Initiative on 21st Century Trade" was handled. The Executive Yuan advocated that there is no need for review, and it can just be sent to the Legislative Yuan for reference. In 2014, when the Kuomintang (KMT) was in power, the DPP insisted on reviewing and voting on each item on the "Cross-Strait Agreement on Trade in Services," saying otherwise it might be rigged. The irony is that Lin Fei-fan, who previously tried to prevent the services trade pact from passing, is no longer preventing anything from being rigged after taking office. The DPP administration changed its strategy as soon as they switched positions.
Not only that, Legislative Yuan Speaker You Si-Kun handed over the right of the Congress Hall to consent investigative searches, allowing prosecutors to search Kao Hung-an’s legislative office while in session. Prosecutors claimed that notifying the Legislative Yuan on the lawful search of legislators' offices according to the law suffices, overturning the tacit agreement between former Legislative President Wang Jin-ping and the prosecutor’s office that "the Speaker of the National Assembly needs to agree." The executive power of the ruling party is dominant, and the dignity of the Congress has been disgraced. Even former chairman Shih Ming-teh of the DPP can't stand it anymore.
Not only the Legislative Yuan but also the Judicial Yuan may be reduced to lower echelons of power. The grand justices up for nomination are largely DPP-friendly, turning the them into flanks of the ruling party. When the executive power dominates in the separation of powers, this satisfies the self-interest of the ruling political party, and when the nominee has a specific ideology, how can the people expect the judiciary to be detached and independent, and how can it achieve fairness and justice?
The experience of the U.S. Congress teaches valuable lessons. In February 2016, nine months before the presidential election, Justice Antonin Scalia passed away suddenly due to an illness. President Barack Obama then nominated Merrick Garland but was rejected by the Senate. The Senate Majority Leader Mitch McConnell at the time said, the American people have the right to have a voice in the selection of justices, and this vacancy must be appointed by the new president. Is President Tsai, who only has one year left in her term, really suitable to make such important appointments?
In the United States, there are only 8 Supreme Court justices, and they are granted life tenure. In contrast, Taiwan has 15 grand justices with a short term of 8 years in office. The current system for the selection of justices is not good. As long as the president is re-elected, they can appoint all 15 justices. However, it is difficult to amend the constitution. Su Yeong-Chin, former vice president of the Judicial Yuan, suggested that short-term solution is the law should be amended first to raise the threshold for the Legislative Yuan to exercise the right of consent from a simple majority to two-thirds. However, if the threshold is raised, it will also cause barriers when it comes to employment of personnel, so it may not be the final solution.
The judiciary is an important element for the government to win the trust of the people. However, multiple incidents, including rampant fraud cases, the 2022 Tainan shooting incident, and exorbitant spending in building the Hsinchu baseball stadium that cost NT$1.2 billion (about US$38.5 million), show the party and the government are essentially "synchronized." President Tsai’s judicial reform has not won the trust of the people. There has been no action when it comes to many plans for reform that were passed. According to an opinion poll by TVBS at the end of May, 55 percent of the people were dissatisfied with the performance of the judicial reform, and the satisfaction rate was at 25 percent. More than half of the people did not trust the judicial system.
The biggest failure of the Tsai administration is that from the appointment of personnel in the Transitional Justice Commission, National Communications Commission, and the Central Election Committee, the lack of independence in independent agencies, to the nomination of supervisory committee members, the DPP in all cases resorted to its legislative majority to force through its agenda. Regardless of social perceptions, President Tsai rewards this behavior and her own people, and destroys "constitutional checks and balances" in the name of “democracy.”
When the judiciary cannot be expected to be independent, and is not in sync with public opinion, the people will have to protect their own rights. If the president still insists on doing things her own way today and adopts brutal force in pushing cases through review procedures, there is no guarantee that the people of Taiwan will not seek justice and fairness with their votes on election day January next year.