Tue, Aug 28, 2007 - Page 8 News List

Appointing new grand justices will require care

By Liu Ching-yi 劉靜怡

Eight members of the Council of Grand Justices appointed in 2003 will leave the council late next month when their terms expire. Two other justices have already left their posts for other reasons.

President Chen Shui-bian's (陳水扁) prompt nomination of new candidates is the first step toward ensuring we continue to have a full Council of Grand Justices. What is required next is for legislators to fulfill their constitutional duty and approve the nominees.

But what kind of practical demands should we place on a grand justice?

The reason the position of grand justice is respected so highly is they are the final guarantors of Taiwanese basic human rights.

The grand justices' constitutional elevation does not come from directing the political sector or being arbiters, but instead from insisting on the principles of separation and balance of power. They then use these principles to achieve the ultimate goal of protecting the public's basic rights.

In addition to using the criteria for selecting nominees for grand justices -- their moral standing, integrity, academic ability, professional achievements and constitutional knowledge -- the president and the legislature should give strong consideration to the nominees' grasp of social developments and solid ability to engage in academic discourse to protect human rights.

One of the hopes that the association that monitors the council placed on the grand justices when they were appointed in 2003 was that they would improve guarantees of human rights. But although they have tried hard, a detailed review of their constitutional interpretations over the past four years, shows there is quite a gap between the original expectations and their level of achievement.

In addition to a rather low number of constitutional interpretations, the level of understanding of human-rights protection manifested in these interpretations -- albeit an improvement from previous councils -- makes it difficult to come to an unreservedly positive conclusion.

Human-rights guarantees are probably the area where expectations are highest for the council, but a look at the hard facts is disappointing. Some constitutional interpretations expose the incumbent council's weakness when it comes to the concept of basic rights and discourse ability. Interpretations Nos. 584 (regarding the employment of ex-convicts as taxi drivers), 617 (regarding the distribution of sexually explicit materials) and 623 (regarding distribution of materials that would lead to child and juvenile sexual transactions) are quite representative.

Even Interpretation No. 603 -- which ruled that it was unconstitutional to require individuals to have their fingerprints taken in order to get a national ID card -- included several dissenting and consenting opinions that revealed a conservative bent among the grand justices at which I can only shake my head.

Nor do the present members seem to have any intention of touching the death penalty issue, which has long been a focus of concern for judicial reform and human-rights groups in Taiwan and abroad, so there doesn't seem to be the slightest improvement there from previous councils.

It should be quite clear what kind of grand justices we need, and it should be equally clear to the president who nominates them and the legislature that approves the nominations.

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