It is not enough to be independent from foreign jurisdictions. The legal system should also be independent from private interests and malice.
by Marco Respinti*
*A paper presented at the webinar “A Real, Independent Justice for Tai Ji Men” co-organized by CESNUR and Human Rights Without Frontiers on January 11, 2023, Taiwan’s Judicial Day.
Today the Republic of China celebrates its Judicial Day, marking the day when, in 1943, Taiwan became independent from any foreign jurisdiction. This is a pivotal aspect of Taiwan, which is a bastion of freedom and democracy in an area of the world where democracy and freedom are a rare commodity.
From August 26 to September 6, 1985, the United Nations held their Seventh Congress on the Prevention of Crime and the Treatment of Offenders in my town, Milan, Italy. On the final day, September 6, 1985, that UN Congress adopted a text that all should read and study, and constantly recall. It is called “Basic Principles on the Independence of the Judiciary.” On the Judicial Day of the Republic of China this year, let me share the first two articles of that important document.
The first reads: “The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.”
The second reads: “The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.”
With these words, the Unites Nations teaches and reminds us that the state itself should regard the independence of the judiciary as almost sacred, and that the first single aim of the judicial system of a country is impartiality, which is the other name of justice itself.
At least three key words and concepts emerge from these introductory reflections. Not by chance, at least two of them are part of the title of our webinar today, the third being just the direct and logic conclusion of them.
The three words are “independence,” “justice,” and “democracy.” “Independence” and “justice” are the two words evoked in our title, and they lead to the third, “democracy.” Let me explore them briefly.
“Independence” means not being subject or subordinate to others: to no people, no organizations, no foreign state. Not even to churches and religious organizations. Of course, believers are bound by the doctrine and morals upheld by the church or religious organization they belong to, but this does not mean that a church or a religious organizations should dictate every single act of the believers. It does not mean, on the other hand, that believers should ignore the teachings and directions of the church or religious organization they are part of. It means that a balance between obedience and autonomy is to be sought, and possibly found.
Here, the history of the Christian Middle Ages in the West is an important case study. It alternated between at least three main attitudes. The first was the temptation of theocracy, when the church pretended to impose its authority to the political power. The second is the danger of secularism, when the state regarded itself as separated and paramount rather than only distinct from the church. The third attitude can be called a symphony between the two powers, temporal and spiritual, which guaranteed a balance between freedom and due respect for the authority. Of course, this third option was an ideal, very much difficult to achieve and maintain.
Independence is not the despotic rule of an egoistic self, but the responsible self-government of a person’s conscience, the feature of truly adult citizens who are able to decide for themselves and also to take wise advices.
The second concept and word I mentioned is “justice.” Contrary to what we may generally think, justice is not an end: it is a means. It is not a goal in itself, but it serves a purpose. In fact, justice is a way to achieve good: the common good, or the good of all human beings living in a social and historical context, as well as what is good for an individual and for his or her salvation. Good is the goal, and justice is the way to achieve it. So, justice always makes choices, sometimes difficult, and rules in the name of good. When it discriminates and choses for purposes other than good, it rules arbitrarily and becomes its opposite: injustice.
The Greek philosopher Aristotle (384–322 BC) eloquently addressed the nature of justice, defining it as the means to achieve the goal, which is the good. In his “Nicomachean Ethics,” he stated that justice is not a matter of giving to everyone equally, but of giving to all their due. Aristotle implied that to treat human beings with equity, justice ought to make differences among them. This same concept entered Roman law, and then served as the basis of Medieval and modern legal practice in most of Europe.
The third concept and word is “democracy.” Many think that democracy is just a type of political regime. It is not. According to classical political philosophy, originating again with Aristotle, there are three forms of government: monarchy, or the rule of one sovereign; aristocracy, or the rule of the best people; and republic, or the rule of many through their elected representatives. Democracy is a description of the way by which these three forms of government govern. When, in one form or another, mediately or immediately, people participate in the political life of a nation, there is democracy. All the three mentioned forms of government, monarchy, aristocracy and republic, are democratic if, in one form or another, citizens are represented and can freely participate in the political life of a nation. If citizens cannot participate freely in the political life of a nation, tyranny substitutes monarchy, oligarchy as the rule of the dispotic few comes in instead of aristocracy (which is the rule of the “best,” “aristoi” in Greek), and demagogy, or the rule of ideology, sophistry, and propaganda, takes the place of republic. The mark of these latter three forms of government is to be undemocratic.
Monarchy, aristocracy, and republic can all provide a good government for the people, as opposed to tyranny, oligarchy, and demagogy, if they rule over society to secure good: the common good of many, and the individual good of each citizen. To achieve this goal, all just forms of government must always act through justice, independently from all improper influence. This is why and how only independence and justice can grant true democracy.
To say it differently, human beings can enjoy the liberties and beauties of true democracy only when justice is independent, or the judicial system of a country does not depend on external conditioning.
The Tai Ji Men case perfectly illustrates what I described so far. Taiwan is a democracy, but if its judicial system is conditioned by greed, ideology, corruption, and malevolence, then Taiwan ceases to be a full democracy.
If its judicial system is incapable to redress the wrongs done to loyal citizens such as Tai Ji Men’s Shifu, of Grand Master, and dizi, or disciples, then Taiwan fails to correspond to the model of a full democracy.
If Taiwan’s system of justice is flawed because its independence from personal interests and malice is not granted, then Taiwanese citizens such as Tai Ji Men’s Shifu and dizi suffer injustice.
Sin and evil will never be eradicated from humanity, but human beings have the moral duty to tame, contain, and battle sin as much as possible. Since politics is the art of governing people for that supreme goal that is good, let us hope that, on Taiwan’s Judicial Day, Taiwan’s politics would find a way to regain its independence from the wrongdoings of some of its branches and corrupt officials, and consider the solution of the Tai Ji Men case as a top priority. Only in this way will Taiwan become a full-blown democracy.