The Constitutional Court on Jan. 2 issued its first interpretation of the year — which is also its first to follow last year’s Dec. 19 judgement that struck down amendments to the Constitutional Court Procedure Act (憲法訴訟法) that had effectively paralyzed the court for nearly a year.
What is troubling about the latest ruling is not the judgement itself, but the maneuvering of individual justices in an attempt to continue to hold back the court’s operations.
The case was about the ability of defense attorneys to appeal a client’s detention when they are unable to file in person. Three out of the eight sitting justices chose not to vote — they had also refused to participate in last month’s proceedings, which saw the court’s operations resume. The issue is that under the Constitutional Court Procedure Act’s voting thresholds, a person only needs to create a dispute over headcounts to halt the entire court.
It is an example of a legislative overstep that attempts to contain and control the authority that the Constitution confers upon the justices.
The arguments that said the justices who refuse to deliberate should nonetheless be counted toward the total number of voting judges are troubling. That interpretation would ensure that, as long as three judges abstain, the two-thirds adjudicatory threshold — currently six out of eight sitting justices — is never reached. It would grant the minority constitutional veto power and the ability to paralyze the court through non-deliberation without judicial reasoning.
Consequently, the public would be forced to wait indefinitely for resolutions to any major constitutional dispute. Constitutional judgements are meant to offer a way out of deadlock, but this would sever that lifeline and reduce the Constitution to little more than a symbolic ornament.
Under the current circumstances, the continued operation of the Constitutional Court by five justices is not ultra vires, but the most basic form of fidelity to the Constitution. They are not just upholding procedural form, but ensuring that the public’s basic rights to litigation and constitutional relief are not compromised by a legislative black hole.
Yeh Yu-cheng is a secretary at the Pingtung County Public Health Bureau.
Translated by Gilda Knox Streader
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