What education, qualifications, and experience do you need to become a judge or a prosecutor in Taiwan? The answer on all three counts seems to be "surprisingly little."
Aspiring judges and prosecutors must pass the Special Examination for Judicial Officials held annually in the fall, and then undergo an eighteen-month program at the Training Institute for Judges and Prosecutors in Taipei. Most of the candidates are law majors, although those with degrees in politics and administration are also eligible. Approximately 4,000 people take the exam every year, and the pass rate is between 3 and 5 percent. In recent years, however, the Judicial Yuan has been recruiting more judges in an effort to cut waiting lists and workloads.
During their training at the institute, recruits study in groups of nine. At the end of the course they are graded, and those placed third, sixth, and ninth respectively are appointed prosecutors. The other six become judges. To outsiders, this system appears somewhat haphazard, but after four years of continuous service judges may apply to become prosecutors, and vice versa.
Lin Shih-tsung, a qualified lawyer and law professor at Soochow University, is unhappy with this system. He prefers the American method of choosing judges from the ranks of experienced and reputable lawyers, either through election or by appointment. Joseph Lin, chief executive of the Judicial Reform Foundation, agrees. "It's not easy to determine whether someone's guilty or not," he says. "You have to be both dedicated and experienced to do the job well."
Another feature of the US system is that it is rare for a judge to resign and go into private practice, while in the United Kingdom such transfers are unknown. In Taiwan, however, judges may quit the bench and start their own firms, and last year several did so. Most observers agree that this is a waste of valuable human resources, because an experienced judge is obviously an asset to any society.
"It's all right to have young prosecutors," says prosecutor Chen Jui-jen. "They can afford to make mistakes. A judge can't, because he's the one who has to make the decisions. But in Taiwan, you're quite likely to see judges in their twenties hearing cases in the District Court, having passed the exam right out of college. It's hardly surprising that plenty of litigants find their judgments a bit strange." Chen has taught at the training institute, and he believes that neither exams nor courses produce good judges by themselves--genuine ability only comes from hands-on experience.
Once such experience has been gained, are there any programs of ongoing judicial education? At present, the answer is no, apart from occasional seminars organized by the Judicial Yuan. There are plans to create a Judicial Personnel Study Center to provide continuing in-service training for judges, clerks, and public defenders, but this lies some way in the future, because the organizational law of the Judicial Yuan will have to be amended first, and finding legislative time for the task will not be easy.
Another problem is that those who go on the bench are almost always law majors whose knowledge tends to be limited to the fruits of academic study. They have no practical experience of the law they apply or, indeed, of any other discipline or pursuit. As a result, they tend to make a bad showing when faced with cases involving, say, finance or medicine.
In contrast, the law schools of the United States and Europe recruit graduates who have majored in many diverse fields. "So there, students come at legal discussions from many different directions," says Lin Shih-tsung, contrasting that with the situation in Taiwan, where nearly all classmates share the same background. It follows that a lawyer in America or Europe can often display great expertise in a number of different specialties, while at the same time having a better basic understanding of society as a whole.
For these reasons, in 1992 Soochow University expanded its graduate school of law by creating a special course for non -law majors, leading to the grant of an M.A.. Law majors study for two years, but their non-law counterparts must study for three. In 1997 National Chengchi University followed suit, so now the island boasts two so-called "special" graduate schools of law.
At present, reform stops there, and District Court Judge Chen Hsien-yu sees nothing wrong with that. "I agree that we need to create more routes to the bench," he says. "But is it right to abolish the exam before we've established a sound and fair appraisal system to replace it with?" Joseph Lin notes that the ROC is far from being the only place in the world to insist on its judges taking examinations. And there is one final point to consider: An exam, if fairly administered, at least does some thing to counter nepotism and influence-peddling in an environment where those evils are far from being historical relics.