Amid the chaos over the past few weeks, the Legislative Yuan passed an amendment to the Constitutional Court Procedure Act (憲法訴訟法) which would increase the required threshold of the number of judges and consensus for declaring legislation unconstitutional. This would inevitably lead to deadlocks similar to those in the US jury system, leaving citizens’ right to seek litigation unprotected.
The sixth amendment to the US constitution grants people accused of non-misdemeanor crimes the right to a trial by jury. A jury typically consists of 12 members. As criminal penalties are the country’s most severe punishment, the jury’s verdict — whether “guilty” or “not guilty” — must be agreed upon by all 12 jurors unanimously. If the jurors are unable to reach a unanimous verdict, the judge would require them to continue deliberations. A “hung jury” occurs when a unanimous verdict is still not attained after further deliberations, thereby leading to the declaration of a mistrial and the dismissal of the case. In this scenario, because the case did not undergo substantive adjudication, the prosecution must decide whether to retry the case. If the prosecution proceeds with the indictment, a new jury is formed.
Under the amended Article 30 of the Constitutional Court Procedure Act, the first clause — “Except otherwise provided in this 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” — would remain unchanged. However, a second clause would be added specifying that the number of justices taking part in proceedings must be no less than 10 and that a declaration of unconstitutionality requires agreement from at least nine justices.
Given that there are currently only eight justices, the Legislative Yuan’s decision yesterday to block all of President William Lai’s (賴清德) nominations means the court would fail to reach the newly required threshold for justice participation. Consequently, it would only be able to hold meetings related to procedural issues and be unable to address the substance of cases. Furthermore, as regulated by the third clause of the same article, when an insufficient number of justices makes deliberation impossible, a majority of the justices might decide not to proceed with the case. This could result in the arbitrary obstruction of people’s right to file constitutional lawsuits.
Even if the Constitutional Court manages to assemble 10 justices and meets the threshold to pass judgement, the court would fall into deadlock unless the majority of justices agree on the legislation’s constitutionality. If eight justices deem the legislation unconstitutional and two deem it constitutional, the former would fail to meet the new nine-justice threshold for unconstitutionality, while the latter would not constitute a majority. In this situation, the law could be declared neither constitutional nor unconstitutional.
As the Constitutional Court Procedure Act fails to provide explicit provisions to address such deadlocks, these cases would remain indefinitely stalled.
Although there has been a debate over whether the Constitutional Court incorrectly serves as a de facto fourth administrative branch, it is undeniable that the right of people to file constitutional lawsuits is a vital lifeline. Therefore, the amendment to the Constitutional Court Procedure Act severely undermines people’s right to seek litigation and must be corrected as soon as possible.
Wu Ching-chin is a professor in Aletheia University’s Department of Law and director of the university’s Criminal Law Research Center.
Translated by Kyra Gustavsen
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