Scholar: Violates judge ethics and confuses private and referee opinions

Justices Cai Zongzhen, Yang Huiqin and Zhu Fumei continued to refuse to participate in the deliberations, but issued separate legal opinions using the title of justice and authorized paid downloads, which was reported to the Judicial Yuan by members of the legal profession. Scholars Zhang Jiayin and Su Yantu criticized that this move violated the ethics of judges. The three of them continued to deny the judgment as justices outside the procedure, which would weaken the authority of the Constitutional Court. Another senior judge questioned that the three people confused private comments with formal judgment opinions, which might affect the fairness of the trial.

Zhang Jiayin, a professor of law at Soochow University, pointed out that the three people did not participate in the trial and review, so they were unable to submit a formal "disagreement". As for the subsequent "disagreement", they were not announced with the referee and could only be regarded as personal legal opinions.

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Zhang Jiayin criticized that if the three people expressed legal opinions in their private capacity, it was not impossible for them to do so, but they used judicial terms such as the title of chief justice and "this bench" in their writing, and directly expressed dissent from the judgment of the Constitutional Court where they served. Private legal opinions gain authority that is different from that of general academic treatises through the title of justice and judicial vocabulary. It can also easily cause the outside world to confuse private opinions with formal judicial opinions, which is a clear violation of judge ethics.

Su Yantu, a researcher at the Institute of Law of Academia Sinica, said that although Cai, Yang and Zhu have a set of legal opinions on the refusal to review, whether to participate in the review and how to speak to the outside world as a justice after the verdict are two different issues. The justices can express their positions through deliberation and dissenting opinions, but the three refused to participate and continued to deny the judgment outside the procedure, which involves another level of judicial ethics issues.

Su Yantu said that if members of the court continue to deny judgments as justices, it will weaken the authority of the Constitutional Court and make society question why the people should accept the judgment if even the justices do not accept it. In the long run, it will also affect the institutional function of the Constitutional Court in making final judgments.

Several senior judges who did not want to be named also proposed the principle of "judge silence" in order to prevent extrajudicial remarks from affecting the fairness of the trial. The judicial status of a formal opinion letter comes from participation in the review and the process of filing it in accordance with the law. Subsequent comments from non-participants cannot replace the dissenting opinion letter. The personal opinions of the justices should be clearly distinguished from the official judgment opinions to avoid extra-procedural remarks being regarded as judgments with judicial authority.