Wed, Jul 01, 2020 page8

• Questions stymie rights commission

  • By Lin Chen-hsien 林臻嫺
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  Late last year, the Legislative Yuan passed the Organic Act of the Control Yuan National Human Rights Commission (監察院國家人權委員會組織法) through all three readings, adding Article 3.1, Clause 1, Item 7 to the Organic Act of the Control Yuan (監察院組織法).

  With these two organic laws, the Control Yuan was partially transformed into a National Human Rights Commission (NHRC) in compliance with the Paris Principles.

  The commission was originally intended to start operating on Aug. 1, but then the Control Yuan issued a rare press release saying that, due to certain factors, including the slow progress of the law through the legislature, it would be impossible for it to start according to schedule.

  The reasons for the slow progress included the nominations for the Examination Yuan and the Control Yuan, and their review in the extraordinary legislative session.

  However, the cause of the delays go beyond issues surrounding the operation of the NHRC, and possibly also involve other fundamental, constitutional conflicts.

  Neither the Paris Principles nor the Vienna Declaration of the 1993 World Conference On Human Rights are compulsory: Any country wanting to set up a human rights commission of some kind is free to determine how it does so.

  Initial deliberations in the legislature considered three models. The first was to set up the NHRC as part of the Control Yuan along the lines of the National Audit Office; the second was to transform the Control Yuan into a hybrid human rights and oversight agency; the third was to set up the NHRC as an independent, yuan-level institution within the Control Yuan, and to appoint Control Yuan members to sit on it.

  The former two were deemed problematic, and so the third option was eventually adopted.

  This approach, with the legislature amending an organic act to set up a national-level human rights commission, was certainly convenient and fast, but not without its problems.

  For a start, the Control Yuan is, after all, a constitutional organ of government, and has also been through a number of constitutional amendments that have stripped away a great deal of its constitutional powers, with the 1993 Council of Grand Justices’ Interpretation No. 325 concluding that there are limits to its right to exercise the power of investigation.

  The Control Yuan’s “constitutional power” was limited to the power to impeach, rectify, censure, audit, review documents and set up investigations, as clearly laid out in the Constitution and the Additional Articles.

  To supplement its ability to exercise these powers invested in it by the Constitution, it naturally also has the right to exercise the power of investigation, but this power must not be used in a way that would infringe upon the exercise of the respective constitutional powers of other branches of government, such as the Legislative Yuan, Judicial Yuan and Examination Yuan.

  As to its statutory powers authorized by the legislature, they do not necessarily allow it to exercise the power of investigation stipulated in Article 95 of the Constitution, nor does it necessarily accord it the right to request a constitutional interpretation.

  Meeting No. 1482 of the grand justices in 2018 on case 4 for the Petitions Denied with Reasons by the Constitutional Court, concerning a constitutional interpretation requested by the Control Yuan on the Act Governing the Settlement of Ill-gotten Properties by Political Parties and Their Affiliate Organizations (政黨及其附隨組織不當取得財產處理條例), was dismissed by the Council of Grand Justices.

  The reason given for the dismissal was as follows: The Control Yuan’s power of initiating and carrying out investigations should be exercised only in line with its constitutional powers with the objective of impeachment, censure and audit.

  Should the object of the investigation be unrelated to the aforementioned constitutional power or exceed the scope of the Control Yuan’s power, then there is no grounds for the exercise of that power.

  Further, if the investigation is carried out purely for the sake of investigation, then it clearly exceeds the scope of the Control Yuan’s constitutional power.

  That also means that it is in non-compliance with Article 5, Clause 1, Item 1 of the Constitutional Interpretation Procedure Act (司法院大法官審理案件法), which states that central government branches which in the exercise of their powers encounter questions on the application of the Constitution should request a constitutional interpretation. It was for this reason that the petition was denied.

  Article 2 of the organic act of the commission lists nine functions and powers of the commission. According to the first item, the commission can “investigate incidents involving torture, human rights violations or various forms of discrimination.”

  In terms of the legal hierarchy, these are not constitutional powers, but what is referred to as “statutory powers” in the Constitution and Additional Articles.

  If the object of investigation is not related to the constitutional powers of impeachment, censure and audit, there could be conflict with the constitutional powers of the other branches of government, which in the extension could lead to disputes over the implementation of the power of investigation stipulated in Article 95 of the Constitution.

  When considering the implementation of the constitutional powers of the rights commission, people will have to wait and see if it will be possible to avoid further constitutional disputes and to overcome the limitations posed by the grand justices’ Interpretation No. 325, the decision to reject the Control Yuan’s request for a constitutional interpretation by the justices in their meeting No. 1482, and Article 5, Clause 1, Item 1 of the Constitutional Interpretation Procedure Act.

  A thorough solution to the dispute would require amending the Constitution to resolve the Control Yuan’s unique constitutional status.

  Lin Chen-hsien is the presiding judge of the Tainan District Court.

  Translated by Paul Cooper and Perry Svensson
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