Chinese Nationalist Party (KMT) Legislator Weng Hsiao-ling’s (翁曉玲) proposed amendment to the Constitutional Court Procedure Act (憲法訴訟法) — which would mandate that the two-thirds of the Constitutional Court’s 15 justices must be present to form a quorum, which could paralyze the court — has the legal community in an uproar.
What is even more outrageous is that Weng admitted in an interview that it would be a good thing if the court was unable to function for a long time. Weng is unashamed about her malicious intent to paralyze the Constitutional Court and undermine the Constitution — she has not made even the slightest attempt to hide it.
Weng’s proposal led to a protest by thousands of people, including 153 lawyers, on Nov. 16 to call for the protection of the Constitution. Lawyers from the Taiwan Bar Association, as well as the bar associations of Nantou County, Hsinchu, Miaoli County, Taipei, Tainan, Taoyuan, Pingtung County and other regions, declared their opposition to the amendment.
However, Weng responded to the legal community’s concerns with nothing but political rhetoric, dismissing them as being allies of the pan-green camp.
That drew a sharp rebuke from former grand justice Huang Hung-hsia (黃虹霞), who joined the lawyers’ protest, saying she is no “green ally.” Huang said she was nominated as a grand justice by former president Ma Ying-jeou (馬英九) and was elected unanimously at a time when the KMT was the largest party in the legislature — if anything, she might be considered a “Ma ally.” Huang said legislators have no right to paralyze the court justices, nor do they have the authority to suspend the public’s right to a constitutional appeal.
Why does Weng so fervently promote this Constitution-damaging amendment? To put it simply, Constitutional Court justices are like constitutional police officers. If someone attempts to infringe upon the Constitution, these police officers would blow their whistles and block the action from taking place. Those with a history of constitutional infringements fear the justices.
Weng’s previous proposal to expand legislative oversight was ruled unconstitutional by the court. Weng herself has a history of constitutional infringement and wants to establish a law that would paralyze these constitutional police officers, destroying the Constitution by rejecting checks and balances, and throwing the government into chaos.
Weng’s proposed iteration of the law contradicts Constitutional Interpretation No. 632, The Exercise of Constitutional Powers and the Duty of Loyal Cooperation of Constitutional Organs Case (憲法機關忠誠義務及權力分立原則). The constitutions of the US, Germany and other democratic countries all possess mechanisms to prevent the paralysis of constitutional review bodies in order to maintain the most basic principles of democratic constitutional governance and ensure the public’s right to constitutional litigation is not compromised.
When compared with the democratic countries of the world, Weng’s proposed version of the law possesses no mechanism to prevent the paralysis of the Constitutional Court — it is clearly unconstitutional.
It is imperative that the Constitutional Court stop Weng’s malicious and harmful amendment. Even if there are currently only eight justices, the court cannot shirk its constitutional duty. It should rule that Weng’s proposed amendment is unconstitutional. However, this would inevitably trigger complaints from KMT and Taiwan People’s Party (TPP) legislators that the number of justices does not meet the legal threshold for a valid ruling.
To prevent the Constitutional Court from being caught in such a dilemma, a second approach is to consider the importance of maintaining democratic constitutional order. Premier Cho Jung-tai (卓榮泰) could refuse to countersign this unconstitutional amendment, thereby preventing it from taking effect.
According to the Additional Articles of the Constitution of the Republic of China (中華民國憲法增修條文), the legislature has the authority to propose a vote of no confidence against a premier who refuses to countersign, which would force the premier to resign if passed. From there, the president could dissolve the legislature and hold new legislative elections.
If the KMT and the TPP are confident that they represent the majority of public opinion, they have no need to fear a vote of no confidence.
Huang Di-ying is a lawyer and chairman of the Taiwan Forever Association.
Translated by Kyra Gustavsen
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