The Constitutional Court on Friday last week ruled that an opposition-backed amendment to the Constitutional Court Procedure Act (憲法訴訟法) was unconstitutional and should be rendered void, as it was passed in an undemocratic manner and goes against the constitutional principle of separation of powers.
The Constitutional Court has been brought to a standstill for about a year, since amendments were passed in January by the Legislative Yuan dominated by an opposition alliance of the Chinese Nationalist Party (KMT) and the Taiwan People’s Party (TPP) with a slim majority that requires a minimum of 10 justices out of the 15-justice court to hear and rule on a case entered into force. At the same time the opposition has rejected all nominees to the court by President William Lai (賴清德), leaving the Constitutional Court with insufficient numbers after seven justices’ terms ended.
The amendments to the Constitutional Court Process Act were proposed soon after the Constitutional Court struck down amendments to the Act Governing the Legislative Yuan’s Power (立院職權行使法) to massively expand legislators’ powers in June last year, which were voted through without meaningful discussion. It was widely viewed as retaliatory legislation to strike at the judicial power vested in the court by the Constitution.
As a result, more than 400 human rights-related cases have been held up due to the kneecapping of the court, as well as all appeals by the Executive Yuan against controversial legislation, such as the opposition-backed amendments to the Allocation of Government Revenues and Expenditures (財政收支劃分法).
The legislature’s hobbling of the Constitutional Court not only has breached the separation of powers in the Constitution, but has impaired public interests and national governance. There is growing concern that some pro-China opposition lawmakers’ weakening of executive and judiciary powers could be a disturbing and concerted move in line with China’s “united front” strategy to create unrest in Taiwan.
The operation of a Constitutional Court is a core function for upholding democracy.
In the US, the nine justices of the US Supreme Court have lifetime tenure to decrease the possibility of the court’s malfunction due to insufficient numbers. In Japan, 15 justices of the Supreme Court of Japan are nominated by the Cabinet and subject to public elections each decade to assure the court’s independent operations.
In Germany, the federal constitutional court’s procedural rules are formulated by the court’s judges’ conference, demonstrating considerable autonomy and independence, and retiring justices can extend their term in office in case the appointment of new judges is hindered by political circumstances.
According to article 171 of the Constitution, “ Laws that are in conflict with the Constitution shall be null and void.”
And the Judicial Yuan Interpretation no. 601 said ”if and when a particular judge is recused, another competent judge must take his or her place to perform his or her duty by continuing the trial so as to preserve the trial functions of the court. If no judge remains to exercise the authority to try a case due to recusal of judges, the trial may not be denied for reason of recusal.” It has highlighted a principle that the operation of Constitutional Court is more important and should not be denied by judges’ absentee or recusal.
Friday last week’s ruling issued by five justices — a majority of the eight remaining justices after seven justices stepped down upon expiry of the term — to invalidate the amendment was a move the Constitutional Court had no choice but to make and the only way to resume the basic function of the court of performing its duty vested by the Constitution.
The court should step back into its role as a constitutional third party to arbitrate the escalating constitutional disputes and political deadlock between the executive and the legislative branches, as well as restoring the people’s right to seek legal remedies from the top court.
While the other three justices announced their dissents to the ruling, they said “the ultimate solution lies in filling the vacancies of the justices in accordance with constitutional procedures.”
This had already been put forth by legal experts and the public, but failed due to the opposition’s repeated rejection of all nominees.
The KMT caucus has instead vindictively proposed amendments to Referendum Act (公民投票法) aiming to use referendums to overturn Constitutional Court rulings, legislation of dubious constitutionality over whether the consultative referendums could overstep constitutional power and legitimacy.
Opposition legislators even filed a motion to impeach the president, which would likely fail because impeachment requires approval from two-thirds of lawmakers, a number larger than what the opposition controls. Impeachment would also need to be approved by the Constitutional Court, which, ironically, has been crippled by the opposition. After the five justices finally made a difficult constitutional ruling, the president and his administration could show goodwill by nominating a new group of justices, bringing a chance to resume dialogue with the legislature and repair political divisions.
If the opposition-dominated legislature still insists on deepening the vicious cycle of political confrontations, the public should vote wisely in the coming elections next year to restore the robust democratic checks and balances between the legislative, executive and judicial branches.
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