Feb. 10, 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 President Lai Ching-te exercising his mediation power on February 10, 2025, and a 3-justice chamber dismissal on a petition related to the Hsinchu City Mayor.

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Presidential Mediation Power

Amid the deadlock between the legislative and executive branches, President Lai Ching-te exercised the constitutional presidential power of mediation among branches and invited the other four presidents to resolve disputes. The mediation resulted in three agreements:

1. Each of the five branches should follow the constitutional law and respect each other while checking each other.
2. In foreign affairs, the five branches should collaborate and prioritize national defense and diplomacy, with national security as the top priority.
3. Domestically, the five branches should focus on the economy and strengthen industrial development.

This marks the first time in Taiwan’s history that the president successfully exercised this power. While  it is termed as a constitutional power, it can only be exercised when the respondents are willing to join the mediation. Historically, former President Chen Shui-bian intended to exercise this power to resolve the nuclear power plant issue in 2000, and former President Ma Ying-jeou attempted to exercise it to address the Sunflower Movement in 2014. However, both attempts failed as the then-Legislative Yuan President Wang Jin-pyng declined to be mediated.

There was some discussion about whether the President of the Judicial Yuan, Hsieh Ming-yang, who is also a justice in the Constitutional Court, should decline to join the mediation, especially with pending cases related to legislative in the docket. President Hsieh ultimately attended the mediation, and concerns about judicial independence were minimal since the entire mediation was public and broadcasted by the media.

However, the extent to which the mediation will effectively resolve the current political deadlock remains in question. Dr. Huang Cheng-yi, a Research Professor at Academia Sinica, was pessimistic about the mediation’s impact. Besides the mediation power being more of a ritual power, the root of the current political deadlock lies in the disputes among political parties in the Legislative Yuan. Since party representatives in the Legislative Yuan did not participate in the mediation, its effectiveness is questionable.

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A 3-Justice Chamber Dismissal Related to Former Mayor Kao Hung-an

On Feb. 7, the second chamber of the Taiwan Constitutional Court dismissed a petition from the Taiwan High Court (the 23rd tribunal). The petitioner alleged that rules governing legislative employees are unconstitutional as they violate the constitutional principles of clarity, the non-delegation principle, and the protection of the fundamental right to take public office.

Unlike other 3-justice dismissals without significant public interest, this case involves a criminal corruption trial of the current Hsinchu Mayor Kao Hung-an, who is suspended after the trial court found her guilty. Ms. Kao appealed to the High Court, where the involved judges suspended the trial procedure and petitioned for a constitutional review.

Four Reasons for Dismissal

This 3-justice chamber dismissal was longer than usual, presumably due to its high political profile. The dismissal rejected all of the arguments presented by the petitioning tribunal.

Firstly, the chamber did not consider the appealed law to be relevant to Kao’s case. According to the standing doctrine, the petitioned law must impact the trial’s outcome. In other words, the professional judges can only petition for a law, constitutionality of which must be capable of leading to a different result in the trial. In this case, the applicable law is either criminal law or corruption law, not the employment law within the Legislature Organization Act.

Secondly, the dismissal rejected the arguments regarding the violation of the constitutional principle of clarity. The use of standards, in contrast with rules, does not per se violate the clarity principle, although ambiguous on the surface. Moreover, the dismissal indicates that determining whether the facts of the case meet the standard is the duty of the professional court, which the constitutional court cannot review.

Thirdly, the dismissal indicated that the petitioner misunderstood the constitutional clarity principle and the non-delegation principle. Although there are some marginal cases where these two principles overlap, this is not such a situation in this case. Scrutiny of the non-delegation principle and doctrines is triggered only when reviewing both an administrative rule or a delegated rule. However, since the reviewed law is neither administrative nor delegated rule, this concern does not apply in this case.

Lastly, the dismissal criticized the petitioner for failing to articulate the reasons clearly enough to establish a violation of the fundamental right to take public office. According to the reasonableness doctrines, the petitioning professional judge must state a constitutional reason beyond mere reasonableness, which is a higher bar than the review petitioned by ordinary people. From the dismissal, it can be inferred that the petition brief did not meet that standard.

Commentary on the Decision

Some commentators suggest that the decision might have been different if reviewed by another chamber. However, this is a misunderstanding of how the constitutional court works. A 3-justice chamber decision, even without signatures from other justices, is made with confirmation from justices in other chambers.

This understanding is based on the court’s certiorari process. According to the constitutional procedural act, if more than two justices disagree with the dismissal judgment, the case will be discussed by all justices to determine whether to overrule the decision. It is important to note that even a case discussed by the whole court may end with either a 3-justice dismissal or a full court dismissal, depending on what form the whole justices believe is proper.

Functioning of the Constitutional Court

Readers should not be confused about the current situation of the constitutional court. The recent act suspends the court’s ability to make merit judgments and issue injunctions but does not affect its ability to make dismissal decisions. However, since dismissal decisions lack any precedent value, the constitutional court is still considered non-operational.