Four members of the Council of Grand Justices will complete their terms in September, and the Presidential Office is preparing its nominees to fill the vacancies. If the legislature approves all four, then all 15 grand justices will have been appointed by the same president, which is a violation of the Constitution. Unfortunately, the current legal system does not have the power to counteract this situation.
Article 5 of the Additional Articles of the Constitution states: “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 objective was to create a system of staggered terms of office to allow the appointment of grand justices during each presidential term and thus avoid an overconcentration of power. The problem is this system broke down in 2008.
In 2007, the eight grand justices completed their four-year term. However, the Chinese Nationalist Party (KMT), which was then in opposition, rejected four of the nominees. When President Ma Ying-jeou (馬英九) took office in 2008, he immediately nominated and won approval for four candidates.
Before it was amended early last month, Article 5 of the Organic Law of the Judicial Yuan (司法院組織法) stated that their term should be completed at the end of the original term, which means that they should step down in September. So far, however, the Presidential Office has made no preparations to nominate replacements for these four judges, disrupting the system of staggered terms of office.
Even worse, in 2010, the president and the vice president of the Judicial Yuan stepped down because of a bribery case involving several High Court judges, and Ma had to nominate two more grand justices. According to the original system of staggered office terms, these two justices should have stepped down in 2011, but because Ma did not appoint any replacements; the two continued on as president, vice president and grand justices. The irony of asking for a constitutional interpretation of this unconstitutional situation is quite obvious.
Faced with this constitutional chaos, the public cannot pin its hopes on the authorities, and it is unlikely that the Judicial Yuan itself will provide a constitutional interpretation. The only way to resolve the issue is for the public to initiate constitutional litigation. However, according to Article 5 of the act regulating case handling by grand justices (司法院大法官案件審理法), it is only in cases of illegal rights infringement, when legal action has been taken in accordance with the law and the law on which the final verdict is based might violate the Constitution, that a constitutional interpretation can be requested.
These are severe restrictions, and so long as a verdict has not been finalized and every avenue has not been exhausted, there would be no grounds for requesting a constitutional interpretation.
If this difficult situation cannot be resolved, it might be possible to ask the court, based on Constitutional Interpretation No. 371, that the trial be suspended and to request a constitutional interpretation by the Council of Grand Justices. However, the decision to do this rests with the judge, which creates a factor of uncertainty.
Moreover, even if the judge were to file a request, it would be difficult to get an impartial interpretation if the grand justices that are also interested parties do not recuse themselves from the case. This clearly shows that the constitutional system will break down if the legislature accepts all the grand justice candidates nominated by the president.
Wu Ching-chin is an associate professor and chair of Aletheia University’s law department.
Translated by Perry Svensson
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