Three grand justices — Tsai Tsung-jen (蔡宗珍), Yang Hui-chin (楊惠欽) and Chu Fu-mei (朱富美) — have released a five-point statement arguing that the Constitutional Court remains bound by the provisions of the Constitutional Court Procedure Act (CCPA, 憲法訴訟法) governing the quorum and voting requirements for convening and hearing cases. Amended in December last year, the act now requires at least 10 justices to hear a case and nine affirmative votes to declare a law unconstitutional, replacing the previous rule that required two-thirds of sitting justices to participate and a simple majority to reach a decision.
However, with only seven sitting justices and a deadlock in the Legislative Yuan stalling further nominations, the court has effectively been paralyzed. It seems that the justices who claim that the court is therefore unable to rule on the CCPA’s constitutionality have fallen into a circular reasoning trap.
First, the justices have argued that because the CCPA is a constitutionally authorized piece of legislation, and they are bound by the Constitution, they must abide by the CCPA and only convene the Constitutional Court under its stipulated provisions. This would be perfectly logical if the constitutionality of the CCPA itself were not in question, specifically Article 30, which sets out the new voting thresholds for judgements.
If a law is blocking itself from review, and justices do not intervene, does this not amount to legislative powers interfering in the court’s ability to carry out its constitutional function? To presume the constitutional viability of a law prior to its own review would surely be a case of judgement before trial.
Second, all valid legislation, including laws enacted under constitutional authority and those promulgated by presidential order, is subject to constitutional review. This review system allows the nullification of any law found to contravene the Constitution, as stipulated in Item 1, Article 171. Accordingly, the CCPA itself must also be open to such review. Yet the very statute whose constitutionality is in question is being invoked to block its own examination — a crisis of tautological and circular reasoning.
Third, the role of grand justices is to implement and enforce the legal hierarchy set out in Article 171 of the Constitution — their primary goal should be to uphold the Constitution as the nation’s foundational law.
It is the justices — not legislators — who interpret the spirit of the Constitution and ensure no enacted law contravenes it. The statement released by these three grand justices, appearing to capitulate to the Legislative Yuan, therefore, is puzzling and deeply concerning.
Hsu Hui-feng is a professor at CTBC Business School’s Department of Business and Economic Law.
Translated by Gilda Knox Streader
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