The Judicial Yuan has decided that Taiwan’s judicial system should be adjusted by establishing grand panels in the nation’s courts of last resort — the Supreme Court and the Supreme Administrative Court — and it passed draft legislative amendments to this effect on Dec. 22. Some people who know about this proposal are worried that, once these grand panels are established, it will be hard to differentiate their functions and powers from those of the Council of Grand Justices, which is part of the Judicial Yuan. However, if one takes a close look at relevant articles of the Constitution and the way the system currently operates, one can see that the proposed grand panels of the Supreme Court and the grand justices will each have their own powers and duties, so there is no reason to think that their functions will overlap.
Let us first consider the powers and responsibilities of the Judicial Yuan and grand justices, as defined by the Constitution.
Article 77 of the Constitution says: “The Judicial Yuan shall be the highest judicial organ of the State and shall have charge of civil, criminal and administrative cases, and over cases concerning disciplinary measures against public functionaries.”
Article 78 says: “The Judicial Yuan shall interpret the Constitution and shall have the power to unify the interpretation of laws and orders.”
Article 79, Paragraph 2, says: “The Judicial Yuan shall have a certain number of Grand Justices to take charge of matters specified in Article 78 of this Constitution.”
From the wording of these articles, it can be seen that the powers that the Constitution gives to the grand justices are limited to interpreting the Constitution and making unified interpretations of laws and orders. Their powers do not include trying civil or criminal cases. The task of trying civil and criminal cases comes under the jurisdiction of the various levels of ordinary courts, with the Supreme Court being the court of final resort.
The problem at present is centered on the fact that the Supreme Court does not have only one panel, and, as a result, it has not been possible to achieve unified interpretation of laws through litigation and judgements. That is precisely the function that the proposed grand panel of the Supreme Court is intended to perform, once it is established. As to the power of the grand justices to make unified interpretations of laws and orders, it applies in the main to resolving the conflicting legal interpretations of institutions that are not subordinate to one another. It does not include differing readings of the law among the different panels of the Supreme Court.
Second, in terms of actual operation, the grand justices, in exercising their power to interpret the Constitution and unify the interpretation of laws and orders, try to avoid placing themselves over and above the Supreme Court. It is of course not possible under the existing system to petition for a unified interpretation from the Supreme Court regarding different interpretations of the law among its various panels. The grand justices also do not hear cases and interpret the Constitution even where the legal interpretations involved in Supreme Court judgements of individual cases are said to be unconstitutional.
The clearest evidence of the grand justices’ self-restraint, and of the line that they draw between their own role and that of the Supreme Court, is their firm refusal to handle petitions made by individual judges for interpretations regarding unconstitutional precedents set by the Supreme Court, and the fact that they adhere firmly to this stance even when judges complain that they have no sense of what ordinary judges’ work entails in practice.
In cases such as these, it will in future be possible for the grand panel of the Supreme Court to judge them and make unified and constitutional interpretations of the laws involved. Only in situations where there is no longer any room for constitutional interpretations of the laws involved will the grand justices be called upon to conduct a judicial review of the laws.
In other words, the grand panel of the Supreme Court will become the most important forum for debate about how to interpret the law constitutionally. That is quite different from what the grand justices do, which is to make abstract interpretations as to whether laws are unconstitutional, unconstrained by the details of individual cases.
To sum up, the grand justices and the future grand panel of the Supreme Court will have different and separate powers and duties, and their functions will not overlap. This is an important matter to take into consideration when seeking to understand the policy of establishing grand panels in the Supreme Court and Supreme Administrative Court.
Henry Tsai is a judge at the Taiwan Shilin District Court.
Translated by Julian Clegg