Chinese Nationalist Party (KMT) Legislator Weng Hsiao-ling (翁曉玲) proposed an amendment to the Constitutional Court Procedure Act (憲法訴訟法), attempting to specify that the Constitutional Court should have 15 justices, referring to Article 5 of the Additional Articles of the Constitution of the Republic of China (中華民國憲法增修條文).
If the proposal were enacted, it might result in the Constitutional Court being unable to pass judgements.
For example, based on Article 30 of the act — “a judgement shall be rendered by a majority of the total number of the incumbent justices of the Constitutional Court with a quorum of two-thirds of the total number of the incumbent justices thereof taking part in the proceedings.”
A simple majority is needed for the Constitutional Court to pass a judgement, but under the proposed change, 10 would need to agree in each case.
KMT legislators are also boycotting the ratification of judicial nominees, resulting in not enough justices to oversee cases. Should the proposed amendment pass, it would paralyze the Constitutional Court.
It is no wonder that more than 300 lawyers marched in Taipei on Saturday to protest against the proposal and to protect the Constitution.
Article 49 of the act stipulates that one-quarter or more of legislators may lodge a petition with the Constitutional Court for a judgement declaring an impugned statutory law unconstitutional.
According to the Act Governing the Legislative Yuan’s Power (立法院職權行使法), the “total number” of legislators is based on the actual number of registered legislators in a session, excluding those who resign, leave office or die during the session.
That means Weng’s proposal confuses the meaning of “total number of the incumbent” in the same law and fails in terms of legislative technique.
In reviewing whether a law is unconstitutional, justices give priority to interpretations that are consistent with the intention of the Constitution without undermining the intentions of legislators. This is done to respect the legislature and maintain the stability of the law. Only when a conclusion of constitutionality cannot be reached after all interpretation methods have been exhausted would the justices declare a law to be unconstitutional.
However, the plan to amend the law to raise the vote threshold for the Constitutional Court to make a judgement is a tactic to restrain the justices from declaring laws unconstitutional. This would result in the “order” created by the majority of the Legislative Yuan being maintained — tantamount to allowing lawmakers themselves to decide whether legislation is constitutional.
That would create a legislature without checks and balances, making it difficult to protect human rights.
There should be room for social dialogue and legislative debate on whether it is necessary to amend the act and how to appropriately do so.
Rogue bandits are on the loose, but the political parties keep wasting time and energy on internal conflicts.
Hopefully, the ruling and opposition parties will resolve their differences as soon as possible.
Jiang Zung-shiang is a lawyer and a member of the Judicial Reform Foundation’s executive committee.
Translated by Lin Lee-kai
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