The proposed amendments to the Constitutional Court Procedure Act (憲法訴訟法) are yet another attempt by Chinese Nationalist Party (KMT) legislators to destroy the constitutional order and introduce chaos in the government.
Some believe that the changes would paralyze the Constitutional Court, causing Taiwan’s democracy to regress.
Fortunately, the proposed amendments were returned to the Legislative Yuan’s Procedure Committee, and it remains to be seen whether KMT Legislator-at-large Weng Hsiao-ling (翁曉玲) would take any follow-up action.
NEW COURT SYSTEM
Under the new system of the Constitutional Court Procedure Act, which went into effect on Jan. 4, 2022, the Council of Grand Justices was replaced by the Constitutional Court, which consists of 15 grand justices.
The proceedings became those of a full-fledged court of law, which not only examines whether a case itself is unconstitutional, but also determines whether due process was followed.
AVOIDING ‘TEARS’
Judicial Yuan President and Constitutional Court Chief Justice Hsu Tzong-li (許宗力) said at the Judicial Yuan on the day the new system took effect that it gave the justices the authority to adjudicate on unconstitutional judgements, meaning they could avoid situations in which justices have to “dismiss a case in tears.”
The normal operation of the Constitutional Court is conducive to the development of democracy and constitutional government.
TYPES OF SUPERVISION
There are three types of constitutional supervision systems in modern countries:
The first is supervision by the highest state authority, such as the French Senate, established under its constitutions of 1799 and 1852.
The second is supervision by the judiciary. For example, in the UK and the US, the system of judicial review is carried out by ordinary courts, as they have not set up constitutional courts.
The third is supervision by special authorities, which refers to the supervisory system in which a special authority examines the constitutionality of laws, regulations, administrative orders and other normative documents in accordance with specific procedures, and has the power to revoke unconstitutional items.
This type of system is mainly practiced in civil law countries, with Germany being the prime example.
Interpretations of the now-defunct Council of Justice and judgements of the Constitutional Court are “supervision by special authorities,” although the situation in Germany is different.
The German Federal Constitutional Court has wide jurisdiction and can decide its budget independently, under Article 28 of the German Federal Budget Code. Moreover, it runs a unique system to select its 16 judges.
RESTRAINTS
In Taiwan, the Constitutional Court’s budget and the appointment of the grand justices are subject to the power and consent of the Legislative Yuan, which can easily be manipulated by a party that controls a legislative majority, or two parties working together to form a majority, as was the case with the proposed amendments to the Constitutional Court Procedure Act.
The Constitutional Court should operate normally and bring constitutional justice into play so that democracy can be strengthened.
Chen Yi-nan is an arbitrator.
Translated by Lin Lee-kai
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