Brian Hioeby Brian Hioe
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Photo Credit: Jiang/WikiCommons/CC BY-SA 3.0
APPOINTMENTS TO THE Constitutional Court are likely to be fought between the pan-Blue camp and DPP in the coming months. Namely, the terms of seven of the fifteen justices are set to end in October.
The KMT has criticized the planned appointments of the Lai administration as lacking impartiality while suggesting that they would be yes men who would simply comply with the Lai administration’s will. The KMT has taken fire at the backgrounds of some judges. This has occurred with Ford Liao being an expert witness regarding the purchase of CtiTV by the Want Want Group, given concerns about Tsai Eng-meng’s pro-China leanings and desire to purchase Taiwanese media outlets in order to ensure positive views of China. Likewise, Liu Ching-yi was an expert witness for the DPP regarding efforts by the Tsai administration to address party assets of the KMT retained from property seizures during the authoritarian period. Both Liu and Liao are professors at Academia Sinica.
Indeed, the choice of Yao Li-ming as vice president of the Judicial Yuan seemed to be an attempt to signal non-partisanship. Although Yao was director of Lai’s presidential campaign headquarters in the 2024 election and a chair of the Congress Watch Foundation, he is also a former New Party member and was the campaign director of Ko Wen-je’s 2014 mayoral campaign. Yet this has not prevented such criticisms.
Recent moves by the KMT aimed to freeze the ability of the Constitutional Court based on the number of justices present on the Constitutional Court. Namely, legislation that the KMT aimed to advance in the Constitutional Court sought to require that if the Constitutional Court had less than ten members, it would not be able to make majority opinions. In effect, if the KMT were able to prevent any justices from being confirmed in October, then the Constitutional Court would not be able to make decisions.
Bluebird Movement demonstration. Photo credit: Brian Hioe
The move was seen as another attempt to steam-roll through new legislative powers sought by the KMT in the series of actions that triggered the Bluebird Movement. What proves notable, however, is how the KMT has sought to sabotage branches of government that they are unable to control. The legal powers then sought by the KMT involved granting to the legislature powers normally used for the executive and judicial branches of government, seeing as the KMT is unable to win presidential elections at present but can continue to win legislative elections.
Even so, the fact that the president is able to appoint so many justices is actually due to the actions of the Ma administration. Justices were originally appointed four years apart from each other in two cohorts. However, this failed to take place after former president Ma Ying-jeou disregarded this precedent to appoint seven justices during his presidency during one of the many moves in his administration that provoked fears regarding shrinking freedoms. Even though the Lai administration was called on to reestablish this precedent in 2023 by groups such as Taiwan Society, Taiwan Jury Association, and legislators Jang Chyi-lu of the TPP, Lin Szu-ming of the KMT, and former Tainan county magistrate Su Huan-chih, previously a DPP member, this did not take place. As such, it proves ironic that the KMT has hit out against the DPP over Constitutional Court appointments.
Nevertheless, it is to be seen how the upcoming battle regarding the Constitutional Court plays out. In particular, several political issues are likely to be leveraged on by the KMT.
First, the KMT is expected to lash out at justices’ views on the death penalty. Of the seven new nominees, six are in favor of abolishing the death penalty, while nine of the current fifteen justices are opposed to the death penalty. Likewise, the Constitutional Court is expected to make an upcoming ruling on the death penalty, the results of which will probably be used by the KMT for political ammunition if it is against capital punishment–with capital punishment remaining highly popular in Taiwan.
Secondly, the KMT may use the TPP’s current legal troubles to drum up the perception that the DPP has control of the judiciary and is using it to target political opponents. But to what extent the KMT does is still unclear, with some KMT members supporting Ko while others remain on the sidelines, perhaps because of the possibility that support for Ko backfires against them if it results in the public perception that they are implicated in corruption by Ko. Indeed, even if the TPP allied with them in the push for new legislative powers earlier this year, it is still possible that the KMT views the TPP as potentially a liability. This remains to be seen, with the KMT apparently still divided on the issue.