Proposed court rules flawed
Chinese Nationalist Party (KMT) Legislator Weng Hsiao-ling (翁曉玲) has proposed amendments to the Constitutional Court Procedure Act (憲法訴訟法) that would require a two-thirds majority of judges to pass a constitutional interpretation, an increase from the current simple majority.
Another proposed amendment would change the court’s quorum from two-thirds of presently incumbent justices to two-thirds of the full court.
Her proposed amendments also specify that the “total number of incumbent justices” mentioned in the act means “15” — the full number of seats on the court.
To begin, it is necessary to distinguish between the two amendments.
First is the approval threshold. Each item in a Constitutional Court ruling must be voted on by the court justices.
The current law requires approval from a simple majority to pass a ruling. Weng’s amendment would increase that threshold to require agreement from two-thirds of the justices on the quorum.
Second is the base number of justices required to calculate the approval threshold. Under the existing law, the approval threshold — a simple majority — is calculated based on the number of justices present and participating in the deliberation.
However, Weng’s amendment would require that the approval threshold — which she has proposed to be two-thirds — would be based on a quorum of 15 incumbent justices. In other words, approval from 10 justices would be required to pass a ruling.
The KMT’s proposal to amend the law and raise the approval threshold is a matter open for discussion. However, the number of incumbent justices should not be explicitly set at 15.
To avoid politicizing the recent issue of potential vacancies on the Constitutional Court, it is necessary to consider a neutral example.
Suppose six justices must recuse themselves from a specific case, and only nine justices remain for deliberation. With the two-thirds approval threshold proposed by Weng — while keeping the existing definition of the base number of justices — the ruling would require approval from at least six justices to pass. This raises a problem with the amendment, but still leaves room for discussion.
However — in keeping with the above example — if the number of incumbent justices is redefined to be 15, then the two-thirds threshold would require approval from a minimum of 10 justices.
However, the issue would be that there are only nine justices on the quorum.
So, under Weng’s amendments, this situation would render it impossible to pass a ruling.
This raises significant doubts as to whether the protection of citizens’ rights to seek litigation would be undermined, or their constitutional right to seek judicial remedies hindered.
Furthermore, if only five justices recuse themselves from deliberation of a case, then unanimous agreement from the participating 10 judges would be required to issue a ruling.
This situation leads to the conclusion that a constitutional ruling would require a complete consensus of the justices.
Is this an acceptable outcome?
I fear it could become a global spectacle.
In other words, redefining the base number of incumbent justices to 15 means that the approval threshold would constantly change depending on the number of justices present for different cases.
This could lead to situations where unanimous approval is necessary, or where no ruling could be made at all.
This would ultimately undermine the credibility of the Constitutional Court and contradict the amendment’s original intent.
It could even go so far as to inhibit normal judicial function.
Therefore, the current provision defining the base number of incumbent justices should not be changed.
You Chieh-han
Taipei
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