This is a new series of blog posts updating the weekly activities of the Taiwan Constitutional Court. Every Monday, I will share the weekly updates and trivia from the court, along with public comments from Taiwanese legal scholars on cases and court business. If you like it, I hope you consider sharing it.
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Background
As the first post in this series, I would like to introduce the current political situation of the Taiwan Constitutional Court.
7 Justices of the Court retired on October, 31, 2024. On December 20, the Legislative Yuan (congress, hereinafter LY) passed an amendment to the Constitutional Procedural Act, enhancing the quorum required to hear a case and raising the threshold for making constitutional decisions. This poses an obstacle to the court’s operation because there are only 8 incumbent Justices. (Details can see here, here, here, and here.)
The Executive Yuan (hereinafter EY) initiated a reconsideration process with the LY on January 2, 2025, but the LY vetoed it on January 10. According to constitutional law, the President must publish the amendment by January 23. However, the amendment requires the revised law to take effect immediately upon publication.
In the face of this political deadlock, members of the Democratic Progressive Party (DPP) in the LY petitioned for a constitutional review. Meanwhile, Lin Ming-Hsin, the Minister without Portfolio at the EY (Attorney General – equi), announced that the EY would petition for a preventive injunction against the amendment before it takes effect. This has sparked academic debate over whether this litigation is legal under the current constitutional litigation framework.
As the Lunar New Year approaches, we can expect the Court to make a decision this week if they intend to intervene.
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Operation in the Court
While the amendment has not yet taken effect, the court has not made any substantial constitutional decisions since the retirement of the former 7 Justices on November 1, 2024.
Since then, the court has not granted certiorari to new issues (the latest being on July 17, 2024), released oral argument cases and schedules, held oral arguments, released judgments and opinions, or dismissed cases with the whole court (the latest being on September 20, 2024). The court has only been handling minor matters, such as granting certiorari to similar issues, admitting amicus curiae, and dismissing cases with a 3-Justice chamber. Despite public outcry over the release of the constitutional procedural amendment, the announcement was made by the Judicial Yuan, rather than the constitutional court.
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Public Opinion
The Taiwanese Public Opinion Foundation released a survey result on public opinion regarding the amendment to the Constitutional Procedural Act. The survey question was: “Do you agree with the new Constitutional Procedural Act that requires a quorum of at least 10 Justices to hear a case and a threshold of at least 9 Justices to declare a law unconstitutional?” The results were as follows: 49.9% of respondents agreed with the amendment, 29.2% disagreed, 12.1% had no comment, and 8.7% did not know about the issue.
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Scholarly Comment
As a result of complex legal and political circumstances, Taiwanese legal scholars have diverse views on this matter. More than 90 legal scholars have co-signed a statement opposing the amendment to the Constitutional Procedural Act. Some do not express an opinion on the amendment itself but disagree with the possibility of bringing constitutional litigation.
Today is MLK day.
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