On Oct. 1, 2007, the new president of the Judicial Yuan (Taiwan’s judiciary) took office.

At an inauguration ceremony in the JudicialYuanBuilding, right next to the Presidential Office Building, 61-year-old Grand Justice Lai In-jaw received the official seals from his predecessor Weng Yueh-sheng, becoming Taiwan’s first chief justice with a background in both law and finance.

On his fourth day in office, Lai took time from his busy schedule for an exclusive interview with CommonWealth Magazine, discussing the dangers that face judicial independence, the snail’s pace of judicial reform and the heavy responsibilities that come with his new post. Despite being feted with congratulations, Lai frankly stated that he felt no elation, but only a great responsibility weighing on his shoulders.

Since the National Judicial Reform Conference in 1999, Taiwan’s judicial reforms have been proceeding at a snail’s pace. Public discontent with protracted trials, unqualified judges and questionable rulings is growing louder every day.

In addition, Taiwan has slipped in international competitiveness rankings in recent years. Various surveys continue to pinpoint low administrative efficiency and an unsound financial and economic regulatory framework.

Faced with a string of political, social and economic challenges, how will Lai embark on the long road of judicial reform, fraught as it is with contending demands? And given the greatly differing stances of the Judicial Yuan, prosecutors, and lawyers’ groups, how will he generate consensus, and pick up the pace of reforms?

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Q: Could you please tell us what you thought when President Chen Shui-bian inquired whether you would be ready to serve as Judicial Yuan president?

A: When considering a problem I usually ponder what I would think ten years down the road when looking back on my decision at the time.

I am aware that society has very profound expectations of the judiciary. This post is a very heavy responsibility, and the job is very difficult. That’s why I wrestled with myself for a couple of months and rejected the offer to serve as Judicial Yuan president several times when the president sounded out my willingness.

I have served in administrative agencies. In administrative organs hierarchies are very strict – I had responsibility for the agency’s success or failure, but I also had the power to make decisions. The court system is run differently. Judges judge independently. We protect the independence of judgment. We must not interfere with individual cases. Regarding public criticism of so-called “misrulings,” we can only start reforms from the “people” and “system” side. Producing results in the short term is a massive challenge. I can only do my very best.

Q: What are your aspirations for your coming term?

A: There is no guarantee how long the term of a Judicial Yuan president will last. It is for four years at most. During my term I will continue to promote judicial reform in the hope of increasing the public’s trust in the judiciary.

What the people expect from the judiciary is better judicial efficiency as well as rulings that are just and principled. That will require a concerted effort.

I’ve always felt that public trust in the judiciary is a precious asset for a nation. The judiciary is the last line of defense for social justice, and it is necessary that everyone work together to protect it.

Q: But presently the judiciary is stuck in a power struggle between the two main political camps (dominated by the KMT and DPP). How can judicial independence be protected?

A: Recently I read the memoirs of former Federal Reserve Board chairman Alan Greenspan, The Age of Turbulence. Greenspan mentions that some American presidents accepted that the Fed is an independent agency and highly respected its way of doing things. Consequently, they were very cautious in their statements to avoid affecting Fed independence. But some presidents were different. Greenspan judges different presidents differently depending on their respective approach. An insight that I gained from Greenspan’s memoirs is that politicians must accept a responsibility toward history.

It’s beyond question that courts are independent institutions. If a ruling is faulty, we can criticize it on a legal or theoretical basis. But if political language is applied toward the court, the public’s distrust of the judiciary will only increase. That’s not a good approach. I appeal to everyone: let’s work together to uphold judicial independence.

Streamlining the Trial System

Q:How do you plan to continue judicial reform and to rebuild the public’s trust in the judiciary?

A: From the perspective that “the judiciary serves the people,” the foremost goal of judicial reform should be to raise the efficiency and quality of trial procedures.

There’s a famous saying by the late British prime minister William Gladstone: “Justice delayed is justice denied.” When a lawsuit drags on for years, even if the defendant is eventually acquitted, there is no justice to speak of for the parties involved. And slipshod rulings are also unable to win the people’s trust.

Some describe our litigation system as a “barrel-shaped system.” When a lawsuit whose facts have been confirmed by a district court reaches the high court, it must be heard all over again (this is called the retrial system). Often when a lawsuit ends up in the Supreme Court, there again occurs a never-ending dispute over the facts.

Not only are cases that were decided by a district court tried again by the High Court, but even between the High Court and the Supreme Court, cases are repeatedly referred back and forth for a new trial. When protracted lawsuits drag on without a decision being made, the caseload of the judges will of course increase. But for the parties to the lawsuit, it is an even more intolerable ordeal.

In order to eliminate the shortcomings of this “barrel-shaped” litigation system, the Judicial Yuan has in recent years actively pushed for a “pyramid-shaped” litigation system. Taking criminal cases as an example, the reform mainly covers the following:

Firstly, strengthening the fact-finding functions of first-instance trials: In contrast to the second and third instances, the first instance is closest to the time of the crime, which is the best time to establish relevant facts. Therefore, the Code of Criminal Procedure was amended to state that the district courts in principle adopt a system with a panel of three judges and implement the cross-examination method. Through rigorous attack and support proceedings between prosecution and defense, strict abidance by evidence rules, and discovery of facts, it must be assured that in the first instance the facts of a case are clearly established.

Secondly, the second instance has been changed into a post-trial judgment, adopting the continuous trial system. The third instance is a trial strictly about legal issues, and determining whether to grant permission for appeal.

The goal of these measures is to fundamentally solve the problem of repeated rounds of trials and to massively reduce the number of appeals. Meanwhile, numerous reform measures have already been implemented and have shown some results. But with some other measures, we still need to overcome certain difficulties.

If we want to raise trial efficiency, we also need to strengthen our human resources. Presently, Taiwan has only 1,647 judges, and every year we handle millions of cases, both litigious and non-litigious. It is very obvious that our human resources are insufficient. Therefore, I hope to increase human resources, to analyze the flow of litigation cases, and to discuss which procedures or cases could be handled by clerks or legal affairs officers instead of judges, in order to reduce the burden on our judges.

As for the problem of unqualified judges, the Judicial Yuan has proposed a draft Judges Act, which would strengthen the current disciplinary system so that unfit judges could be removed from their positions and withdrawn from hearing trials. The draft law is presently under deliberation by the legislature, and I hope it can be adopted during the current legislative session.

The outside world also often criticizes the quality of court rulings, which is related to the training process for legal personnel.

In Taiwan the vast majority of judges are law school graduates who entered university directly upon finishing senior high school. As a result they are not familiar with fields other than law. Therefore, reform of our legal education is a must. Japan and South Korea are also gradually introducing the American legal education system. We are a bit late to start this only now, but we still need to do it.

Furthermore, most law schools at Taiwanese universities only provide expert training in law, and attach little importance to fields outside the core curriculum, such as humanities, ethics and so on. I hope to strengthen humanities and ethics courses as part of legal education.

Cooperation Needed among All Levels

Q: You are the first Judicial Yuan president to have both financial and legal expertise and to have also served in government agencies. When it comes to raising Taiwan’s competitiveness where could you become involved?

A: This is a very interesting question. When we look at upstream, midstream and downstream policymaking, such questions as which industries the government should develop, which policies, laws and regulations it should formulate, and how they should be implemented belong to the midstream and upstream part – they are the government’s job.

But when disputes arise, they will end up downstream – they will come to the courts. So what we can do, starting from the downstream and then looking at the midstream and upstream, is to examine whether policies and laws are unreasonable and should be amended.

If the upstream, midstream and downstream of the financial and economic legal system can work in concert to formulate clear, reasonable policies and laws, providing a proper course for citizens and enterprises to follow, then there won’t be so many disputes. This would again help to ease the workload of our judges and contribute to raising national competitiveness.

‘Legal Amendments, Strict Management’ No Panacea

Q: What are your suggestions regarding Taiwanese companies’ corporate governance and social responsibility?

A: Corporate governance is a very broad subject. We can make efforts in many regards not only by introducing independent directors and auditing committees. The most crucial point is whether enterprises sincerely obey the law.

Regardless of how stringent the law may be, it will always neglect to cover a few points. The people who want to evade the law will skirt the edge of the law, no matter what. On the other hand, honest people will have to pay an even higher price in order to follow complicated procedures.

“Legal amendments and strict management” are praised as magic tools for preventing speculative bubbles, but reality shows they are no panacea. The stock market only replays the same vicious cycle: deception, soaring stock prices, bursting bubbles, investors losing their shirts, and the government amending the law and enforcing strict oversight. Those who like to take risks will always find some loopholes. No matter how clever you are, you can’t escape being cheated.

If corporate leaders were to sincerely abide by the law, live up to corporate ethics and fulfill their social responsibility, it would be good for themselves and for everyone else.

(Compiled by Scott Wang and Chaoyen Lu)

Translated from the Chinese by Susanne Ganz