Download to be held at UW Law School on October 19-20, 2007

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Proposal for “Law and Democratization in Taiwan and Korea: Twenty Years'
Experience” to be held at UW Law School on October 19-20, 2007.
The Rule of Law and Democracy as Movement Strategy:
Explaining Judicial Independence Reform in Taiwan
Chin-shou Wang
Assistant Professor
Department of Political Science and the Graduate Institute of Political Economy
National Cheng Kung University
[email protected]
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? 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.
The dynamics of Taiwanese judicial independence reform came from an
unexpected source: the district judges 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.” Second,
like the case of Japan, 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. The district judges 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. They not only initiate reform of the corrupt
and controlled judiciary, but their reform strategies are very innovative, as well. For
example, they have integrated the ideas of democracy and of the rule of law into
reform-movement strategy to mobilize and persuade their fellow judges. Most
important is that almost all of their reforms have been successful. Compared to other
third-wave democracies, 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
government in some politically sensitive case, the court might punish them. More
important, reform-minded judges in Japan do not play very important roles in the
Japanese judiciary.
Taiwan’s judicial independence reform began from the inside of the court system
in the Tai-Chung District Court at the end of 1993. Two major avenues through which
the KMT had controlled the judiciary were cases and personnel. Therefore, the
reforms in question were to break down these two types of controls. In this paper, I
will discuss two major reform movements: Case-assignment Reform Movement and
Reforming the Personnel Review Council.