Jan. 27, 2025 – Weekly Update – 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.

This week’s news includes the fate of the constitutional procedural act, a whole-court dismissal, and a memorial to the Honorable Justice Huang Mao-zong.

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The Destiny of the Constitutional Procedural Act

The amendment to the Constitutional Procedural Act has officially taken effect.

Last Thursday (Jan. 23, 2025), President Lai Ching-te promulgated the amendment. Instead of exercising the pocket-veto power, a contentious presidential power raised by some scholars recently, the president signed the amendment but noted that this act “implicates the operation of the Constitutional Court, the core function of the judiciary, and the separation of powers,” and therefore recommended the other four branches to petition for a constitutional review.

When does this act take effect? This amendment requires the act to take effect upon presidential promulgation (see Art. 95 of the amendment). However, this contradicts the legislative principle in Taiwan’s Central Regulation Standard Act, which mandates a minimum three-day vacatio legis (the time between the announcement of a law and its effective date) for every passed law. Furthermore, historical cases adopting this immediate effect mechanism took effect after the vacatio legis period. This question is particularly important for the Court if it intends to review the constitutionality of this law. If the new law takes effect at the moment of promulgation, there is no opportunity for the Court to review it due to the presence of only eight incumbents, effectively immunizing the act from being reviewed. If historical cases hold true, it is possible for the current Court to intervene before the act taking effect.

Surprisingly, nothing happened last Friday. The Court did not issue any decision, whether an injunction to block the act or a substantial ruling on the constitutionality of the act. According to leaked news, the reason for no decision on Friday was that some Justices intentionally absented themselves to prevent a decision. On Saturday (Jan. 26, 2025), the clerk’s office clarified that the Justices did not meet on Friday. With the start of the Lunar New Year holiday, the Court will not make any decisions recently.

Since the act has already taken effect, the Court has only two routes to choose from after the holiday. First, it can follow the law as a crippled court that can only make dismissal decisions until the confirmation of new Justices. Second, it can block or invalidate the amendment with the old act. It is difficult to predict which route the Court will choose. However, considering the current political deadlock among political parties and branches, it is highly possible that the Court will choose the first route to prevent itself from becoming the target of political pressure.

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The Operation of the Court

The court finally made its first whole-court dismissal decision last Thursday, 124 days after the retirement of the seven Justices in October. This constitutional complaint was raised by an individual challenging the constitutionality of Taiwan’s Freedom of Information Act. The case concerns the lack of a path to appeal to the court when the government fails to disclose information proactively. Contrary to the expectation that a whole-court dismissal decision would create fierce tension among the Justices, only one Justice, Chief Justice Hsieh Ming-yang, dissented. It is rare for there to be no coalition with one Justice and for the Chief Justice to be the only dissenter.

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In Memoriam

Honorable Justice Huang Mao-zong passed away on Jan. 25, 2025, at the age of 81. He was nominated by President Ma Ying-jeou and served on the Constitutional Court from Nov. 1, 2008, to Oct. 31, 2016. Before serving as a Justice, he was a Distinguished Professor of Law at National Taiwan University College of Law. His areas included legal methodology, civil law, tax law, and antitrust law.

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Happy Lunar New Year (today is the day before new year eve)!