Following the controversial passage of amendments to the Constitutional Court Procedure Act (憲法訴訟法), the Public Officials Election and Recall Act (公職人員選舉罷免法) and the Act Governing the Allocation of Government Revenues and Expenditures (財政收支劃分法) by Chinese Nationalist Party (KMT) and Taiwan People’s Party legislators, it has been said that President William Lai (賴清德) could apply Article 37 of the Constitution and simply not promulgate the amendments, while the premier could refuse to countersign them into law.
Unfortunately, presidential promulgation and the premier’s countersignature are legal duties, which neither has the power to refuse. Such a refusal would only add to the chaos, break with constitutional procedure and bring the nation closer to a constitutional crisis. This stuff is constitutional law and governance 101.
However, there are three safeguards available to address the problematic new laws.
First, according to Article 3, Section 2 of the Additional Articles of the Constitution, if the Executive Yuan deems a bill passed by the Legislative Yuan difficult to execute, it has the option, with the approval of the president and within 10 days of the bill’s submission to the Executive Yuan, to request the Legislative Yuan to reconsider the bill. However, if the legislature upholds it, the premier must immediately accept the bill.
Second, according to Articles 42 and 43 of the Constitutional Court Procedure Act, the Constitutional Court has the power to render a preliminary injunction on the problematic law, and can give interested persons the opportunity to state opinions or conduct the necessary investigations on their own.
Third, according to Articles 47 and 49 of the same law, should the president, any of the five branches of government or more than a quarter of legislators believe that a law is in contravention of the Constitution, they can lodge a petition with the Constitutional Court for a judgement declaring the impugned law unconstitutional.
Even though the new amendment to the Constitutional Court Procedure Act stipulates that the number of justices should not be less than 10, once this provision has been suspended and has yet to come into effect, the decision would still be based on the existing majority — the current total of eight justices — not the amended statutory number of 15.
The court therefore still needs to rule on whether the new amendment is constitutional. Legislators often make amendments to the law that are subsequently deemed unconstitutional by the Constitutional Court and declared void. It is only a matter of time until such legislators would come up against a recall motion.
Chuang Sheng-rong is a lawyer.
Translated by Paul Cooper
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