Hundreds of lawyers of the Taiwan Bar Association and seven local bar associations on Saturday held a protest in Taipei against a proposed amendment to the Constitutional Court Procedure Act (憲法訴訟法), which they said would incapacitate the court and sabotage the nation’s liberal democratic constitutional order.
Under the amendments proposed by Chinese Nationalist Party (KMT) Legislator Weng Hsiao-ling (翁曉玲), the act would be changed to specify that the “total number of incumbent justices” mentioned in the act means “15” — the courts full number of judges, while a two-thirds majority would be needed to issue a ruling.
The current law requires a simple majority — based on the number of judges present and participating in a deliberation — to pass a ruling, but under the amendments, a ruling would require the participation and approval of at least 10 justices.
Some people are worried that this higher threshold could cripple the court’s effectiveness.
Making the situation worse, the KMT and Taiwan People’s Party (TPP) — which together hold a combined majority in the legislature — have been delaying the approval of seven new justices nominated by President William Lai (賴清德).
There are currently only eight incumbent justices, short of the proposed 10-member quorum, so if the amendments passed, the Constitutional Court would be paralyzed.
The Constitutional Court’s role is not only to clarify the separation of powers and resolve disputes between state agencies, but also to serve as a last resort for defending citizens’ fundamental rights.
The nation’s liberal democratic constitutional order would disintegrate if the court is incapacitated, the bar associations said on Saturday.
The lawyers also cited justice appointment mechanisms and constitutional court ruling requirements in other countries, including the quorum of justices and threshold for passing a ruling in the supreme courts of the US, Canada and Japan, as well as Germany’s Federal Court of Justice.
They said that while they all have a required minimum number of justices for passing a ruling, they also have mechanisms for avoiding a paralyzed court due to an inability to reach a quorum. For example, the US Supreme Court chief justice can assign cases to a circuit appeals court.
The lawyers raised concerns that Weng’s proposal makes passing constitutional rulings much more difficult, especially without a mechanism to avoid court incapacitation, which would surely pose a serious risk to the constitutional system.
TPP Legislator and former lawyer Vivian Huang (黃珊珊) in an article in the Chinese-language Contemporary Law Journal also opposed Weng’s proposal.
She said that Weng’s concerns are unfounded, as there were no rulings in which professional opinions were disregarded, and rulings made by a few justices are hardly possible in reality.
Weng on Friday stubbornly adhered to her view that the lawyers are only a minority of “Democratic Progressive Party supporters,” adding that the risk of paralyzing the court lies in Lai’s nomination of justices, not her proposed amendments.
While the draft amendments are still under review in cross-caucus discussions, the TPP’s stance would be critical, as it would be put to a floor vote if a consensus is not reached. After an internal meeting on Friday, the TPP caucus said it would propose its own amendment bill, which has not yet been revealed.
Although the KMT caucus has denied online reports that the next review of the bill is scheduled for tomorrow, people should continue to pay close attention and voice their concerns to local lawmakers.
If the amendment is passed, it would certainly affect their fundamental rights.
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