Recently, the Taiwan Constitutional Court has been facing the threat of court curbing from the majority of congressmen in the Legislative Yuan (LY), composed of the Kuomintang (KMT) and the Taiwan People’s Party (TPP). Specifically, they aim to require the court, when hearing cases en banc, to have 15 justices and to enhance the voting threshold chamber to 2/3. These two measures, although their legitimacy is debatable abstractly, pose a concrete threat to Taiwan’s constitutional institution because the LY does not actively exercise its confirmation power on the 8 newly nominated Justice candidates. The proposed amendment would freeze the competence of the remaining 7 Justices in the court.
While this amendment to the constitutional procedural act is still being debated in the congress, a leaked document from the LY states that one congressman intends to make the draft take effect immediately after the passage of such an amendment. This is especially problematic because the purpose underlying this document is to prevent the Court from scrutinizing the act itself. Academically, it also poses an exception to judicial supremacy and finality.
Together with some of my colleagues, we wrote a proposal on how to bring this case into the Court legally and legitimately. We argue that, besides the minority congressmen in the Democratic Progressive Party (DPP), the people have already brought a constitutional complaint, the professional judges have already brought an abstract complaint, and the Judicial Yuan—all three can bring the case into the court legally and legitimately.
Although some Taiwanese public law scholars argue that the Court can still hear the case after the act takes effect and binds the court, I personally disagree with this argument from a comparative and sociological perspective. What is happening in Taiwan right now also happened in Poland before. The Polish Constitutional Tribunal reviewed and struck down the law after the constraining court law took effect. Subsequently, the congress resorted to political power by disobeying the court decision. The main reason was that the Tribunal had violated legislative procedures at first. Informed by this comparative experience, I am afraid that the LY will simulate this kind of behavior if the court reviews the law after it takes effect, thereby posing a bigger problem to the constitutional order in Taiwan.
What is omitted from the post is whether the court can address the nomination problem individually. The answer is no since the latest constitutional jurisdiction has deleted “the constitutional question” from the constitutional procedural act. Even though the court has the competence to revive this jurisdiction, the possibility is really low. First of all, the latest deletion was proposed by the Judicial Yuan itself. It is really weird for them to say they were wrong. Second, the efficacy of the constitutional question jurisdiction is really bad. In a similar nomination case between the Control Yuan and the LY in 2007, the Court intervened in the nomination dispute under the constitutional question jurisdiction. However, the LY did not nominate any Control Yuan commissioner after being ordered by the court. I believe the court will remain silent on this part of the issue.
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