Peiyi Yuby Peiyi Yu
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Photo Credit: Brian Hioe
“DO LEGISLATORS HAVE the right to paralyze the Constitutional Court?” the former Constitutional Court justice Huang Hong-Sia asked the protestors at Peace Memorial Park on 17th October. To her rhetorical question, her audience chanted “No!”.
Shortly after, Huang Hong-Sia said, “Let me ask again. Do legislators have the right to suspend the people’s constitutional legal right?” Her some 2000-strong audience, which included 300 lawyers and members from eight lawyers’ guilds, answered again, “No!”. “Your answers aren’t loud enough, because you haven’t been a Constitutional Court justice before,” teased Huang.
Last Saturday was the first time Huang Hong-Sia attended a protest. When circumstance affords, Huang Hong-Sia opts to express her opinions in “Well thought-out court literature”, rather than campaign-style popular speeches. Huang Hong-Sia’s speech came as the latest episode of a looming constitutional struggle between Taiwan’s legislative and judicial power since the parliamentary reform in May.
After passing a controversial parliamentary reform in May, the KMT and TPP majority coalition is now motioning for a Constitutional Court reform. If passed by the parliament, the Constitutional Court reform will raise the bar for the Constitutional Court to make a ruling. The current procedure requires a simple majority for the Constitutional Court to make a ruling, and it would be changed to two-thirds out of the 15 legally mandated justices, requiring ten justices to make a ruling. Currently, there are only 8 active justices serving in the Constitutional Court, and 7 seats awaiting appointments. If the bill goes into effect, the Constitutional Court will be “paralyzed” from making any ruling before the vacancies are filled.
While the parliament has reformed Constitutional Court procedures in recent history, the current Constitutional Court reform was proposed at a sensitive timing. The majority coalition proposed the Constitutional Court reform in July when they were defending the controversial parliamentary reform act in the Constitutional Court. If the parliament majority forced through the Constitutional Court reform in time, the Constitutional Court would not be able to rule on the majority coalition’s controversial parliamentary reform. As the situation transpired, on October 25th, the Constitutional Court ruled unfavorably on the majority coalition’s parliamentary reform act, dashing multiple clauses from the act.
During the Constitutional Court’s trial on the parliamentary reform, the majority coalition legislators and the Constitutional Court saw rounds of heated exchanges. Tension rose on July 10th when the defending legislator, Huang Kuo-Chang, sought the trial as a stage to counter DPP’s smear campaign, while evading to offer the definition of “counter interrogation” to answer Constitutional Court justice Yu Po-Hsiang‘s question. The exchange concluded with the chief justice Hsu Tzong-li reminding Huang Kuo-Chang, “Excuse me, legislator Huang. We are on over time. Please conclude quickly.”
Demonstration against the attempt to freeze the Constitutional Court last week. Photo credit: Brian Hioe
Sharp words finally broke out on August 6th between Justice Yu Po-Hsiang‘ and legislator Huang Kuo-Chang when Yu questioned the chaotic process in which the reform was passed. After back and forth, Yu interrupted Huang, “You haven’t answered me.” Huang insisted, “I did answer your question. Maybe you’re not satisfied with my answer, but I did in fact answer your question.”
Since the development of the situation, the parliamentary reform and the Constitutional Court reform has fused into a battle over the constitutional order between legislative power and judicial power. Protesting the legislative cover, former Constitutional Court justice, Huang Hong-Sia, claimed during her speech on Saturday, “If I were still the Constitutional Court justice and you pass a reform bill like this one, I would rule your constitutional reform unconstitutional.” The crux of the dispute: should the legislative branch be entitled to affect court rulings by altering court procedures; if the judicial branch is entitled to dash legislations that aim to restrict its power.
The proposed Constitutional Court reform itself is, in part, a reset to the last Constitutional Court reform in 2021. The 2021 reform lowered the Constitutional Court’s ruling requirement from a two-third majority to a simple majority. According to statistics released by the Constitutional Court, the Constitutional Court was able to resolve seven times more constitutional appeals, and clear out decades-old hanging cases. Arguments for the current ruling procedure claim that the higher closing rate translates into better confidence in the Constitution–if more constitutional appeals are resolved, it’s clearer to the public what the letter of the Constitution means.
As of the end of October, there are 382 unresolved constitutional litigations, and the Constitutional Court admits an average 94 constitutional appeals each month. If the current Constitutional Court reform goes into effect, these cases will hang on the balance indefinitely until the parliament decides to approve new Constitutional Court justices.