Tue, Jun 04, 2019 - Page 8 News List

Restoring overlapping system for top judges

By Larry Liang 梁蕓茗

President Tsai Ing-wen (蔡英文) on Monday last week nominated four grand justice candidates: Tsai Tzung-jen (蔡宗珍), Yang Hui-chin (楊惠欽), Lu Tai-lang (呂太郎) and Shieh Ming-yan (謝銘洋). If approved by the legislature, they would take up their positions in October, meaning that she would have appointed 11 grand justices during her term, more than two-thirds of the 15.

According to a constitutional amendment passed in 1997, grand justices serve overlapping terms, with half of them being replaced every four years.

Article 5 of the Additional Articles of the Constitution says: “Among the grand justices nominated by the president in the year 2003, eight members, including the president and the vice president of the Judicial Yuan, shall serve for four years. The remaining grand justices shall serve for eight years.”

The design averted a situation in which the nation’s president could nominate more than half of the grand justices, but, should the situation occur, allowed the judicial branch to remain an effective counterbalance to the executive branch. The design also facilitated experience passing from sitting justices to incoming justices and preserved the interpretative direction of the Council of Grand Justices.

However, the terms of the grand justices have been a complete mess for more than a decade. After only four of then-president Chen Shui-bian’s (陳水扁) eight nominees were approved in 2007, there were four vacancies. After then-president Ma Ying-jeou (馬英九) took office in 2008, he nominated five — the fifth taking the place of a retiring justice — and issued a presidential order that their tenures would end in October 2016.

As a result, one president nominated 11 grand justices within one term of office, while the next president can only nominate four. The first president would effectively deprive the second of their constitutional right to nominate half of the grand justices.

In 2015, the Judicial Yuan Organization Act (司法院組織法) was amended. The intent of the Additional Articles of the Constitution was implemented, but the rule that a grand justice filling a vacancy could only serve out that seat’s original term was abolished, destroying the system of overlapping terms.

If the next president is to have the right to nominate half of the grand justices and if the intent of the Additional Articles of the Constitution is to be restored, the Democratic Progressive Party, which holds a legislative majority, must take prompt action on two issues: The Judicial Yuan Organization Act should be amended, restoring the rule that grand justices filling a vacancy can only serve out the seat’s original term, and the tenure of the current eight nominees for grand justice should be shortened to September 2023, thus restoring the system of overlapping terms.

These actions would grant the next president their right to nominate eight grand justices and would restore the intent of the Additional Articles of the Constitution, putting the terms system back on track.

Larry Liang is a legislative assistant.

Translated by Perry Svensson

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