中文版原文連結

On Thursday, November 14, the amendment draft for the “Constitutional Court Procedure Act”(《憲法訴訟法》修正草案) began inter-party negotiations. However, the three major parties failed to reach a consensus on the KMT legislator Weng Hsiao-Ling’s draft. The issue will now be reconvened by Legislative Yuan President Han Kuo-Yu after the negotiation freeze period ends on November 24. The draft could potentially complete its second and third readings by late November or early December.

Backlash Against the Amendment

In recent days, multiple local bar associations have issued statements opposing the amendment, and the legal community organized a "Protect the Constitution March" last Saturday (November 16). The march condemned the KMT-led amendment, warning that it would undermine Taiwan's democratic and legal foundations.

Currently, the Judicial Yuan and Constitutional Court face operational crises. Due to acting president of the Judicial Yuan’s lack of authority to set and promote major judicial policies, judicial reform in Taiwan has stalled. The Constitutional Court is also struggling with a shortage of  justices, having only eight active members, down from five panels to three. Justice Yu Po-Hsiang is now serving on two panels simultaneously to maintain operations. The Court acknowledges that, without new appointments, delays in constitutional interpretation cases are inevitable, severely impacting the efficiency and function of constitutional remedies.

Despite significant public backlash, the KMT has pressed forward with the amendment, dismissing opposition voices as being politically motivated “side supporters”(側翼). In response, 18 civic organizations, including the Judicial Reform Foundation, Taiwan Alliance to End the Death Penalty, Taiwan Indigenous Youth Participation Association, and Amnesty International Taiwan, have issued a stern warning to the KMT. These groups are calling on citizens to join the "Save the Constitution Rally" on November 22 to demand the immediate withdrawal of the amendment draft.

Civil Groups’ Joint Declaration and Five Key Demands:

1. Immediate Withdrawal and Apology: The KMT must withdraw the amendment draft and issue a public apology for its reckless proposals.
2. Critique and Opposition: The Taiwan People's Party should oppose the amendment and openly criticise the KMT's improper legislative actions.
3. Judicial Priority: The Legislative Yuan must not pass legislation that hampers the operation of the Constitutional Court before reviewing the nominations of grand justices.
4. Public Hearings: The Legislative Yuan should hold public hearings to gather input from legal scholars, civic groups, and other stakeholders on the amendment draft.
5. Bipartisan Support for Justice: Lawmakers who value gender equality, indigenous rights, and labor rights should set aside party affiliations to oppose the amendment and ensure the proper functioning of the Constitutional Court.

Event Details for "11/22 Assembly Against Anti-Reform: Save the Constitutional Court! Protect our Democracy

Concerns Over the Amendment:

1. Redefining "Current Total Number" as "Statutory Total" is Absurd!

The amendment proposal led by KMT Legislator Weng Xiao-ling aims to redefine the "current total number" of justices forming the Constitutional Court as the "statutory total" of 15 justices. The proposed addition to Article 4 of the Constitutional Procedure Act states:

"The term 'current total number' in this Act refers to the number of justices stipulated in Article 5 of the Additional Articles of the Constitution."

From a legislative language perspective, the "number of justices stipulated in Article 5" (15 justices) clearly refers to the "statutory total." Meanwhile, the "current total number" by definition should indicate the actual number of justices currently appointed according to the law. The two terms have distinct meanings, and any attempt to conflate them defies logic and undermines legislative clarity.

While constitutional litigation procedures can and should be amended based on practical needs, rational debate, and careful evaluation, this proposal arises amid opposition parties boycotting judicial appointments and with nearly half the justices due to retire on October 31.

Since the 2019 amendment process and enactment of the Constitutional Procedure Act, the KMT has not formally raised objections regarding the Court's composition or decision-making thresholds. However, after the Constitutional Court reviewed the controversial "Legislative Power Expansion/Reform Act," the KMT has frequently sought to "address concerns" about the system via legislative amendments. Objectively, this proposed amendment appears to aim at intimidating and influencing the Court's ruling on this specific case.

2. Raising Decision Thresholds is a Regressive Move in Judicial Reform

Another proposal by Legislator Weng Hsiao-ling seeks to amend the decision-making thresholds under the Constitutional Procedure Act. It proposes replacing the current requirement of "two-thirds attendance and majority approval of those present" with "two-thirds attendance and two-thirds approval of those present." This amendment would revert to the pre-2019 system and represents a significant regression.

The current threshold was developed based on 73 years of interpretive experience by the justices. Proposing a reversion under the excuse of "extreme scenarios" undermines the effectiveness of constitutional adjudication and is an ill-conceived move.

If thresholds must be reviewed, it would be more constructive to tailor them to specific procedures or issues. However, requiring agreement from more than 10 justices for constitutional rulings sets an excessively high bar, even higher than the pre-2019 standard. This risks recreating the systemic issues that hindered efficient constitutional rulings and could lead to even worse outcomes.

This amendment, if passed, could paralyze the Constitutional Court and create a constitutional crisis, severely undermining Taiwan's democratic and constitutional order.

3. Cross-Party Efforts Needed to Oppose the Amendment

Given that this amendment proposal is under party caucus negotiations, its passage could lead to a situation where legislative power unilaterally disables judicial functions, hindering citizens' constitutional rights and disrupting the balance of powers. Passing politically motivated amendments disregards the democratic processes of communication and negotiation.

If the amendment passes, it may result in a lack of judicial appointments, either due to inaction by the ruling party or boycott tactics by the opposition. This would render the Constitutional Court inoperative, paralyzing its essential role in safeguarding rights. We urge lawmakers across all parties to oppose these amendments, particularly legislators committed to judicial independence, human rights protection, and democratic values.

Specific Appeals:

• To Taiwan People's Party legislators: TPP legislators should utilize their critical “8 seat” minority status in parliament to make an impact, rather than limiting themselves to "blue-white coalition" political maneuvers. Legislator Huang Shan-shan is commended for her professionalism in opposing the amendments, emphasizing judicial independence, and advocating for thorough legislative oversight of the judiciary’s budget and judicial appointments. As a "third force" in parliament, the TPP must approach the amendments from a rights-protection perspective and avoid being entangled in partisan politics.
• To Indigenous legislators: Indigenous legislators should prioritize the protection and advancement of Indigenous rights over allegiance to political parties. The proposed amendments could jeopardize Indigenous collective rights under the Constitution. Constitutional litigation has been a crucial avenue for Indigenous advocacy, with five interpretations and rulings concerning Indigenous rights. While not perfect, these have contributed to rights advancements. Indigenous legislators are urged to oppose the amendments to prevent undermining the constitutional remedies and collective rights of Indigenous peoples.
• To legislators advocating gender equality: Taiwan’s constitutional interpretations have made significant progress in gender equality, developing important standards for equality rights. Women’s rights organizations have also played a key role in advancing these rights through constitutional litigation. The amendments could paralyze the constitutional court and hinder the realization and protection of gender equality under the Constitution. Legislators who support gender equality must oppose the amendments to safeguard these achievements and principles.

Overall, the proposed amendments could severely affect constitutional remedies, Indigenous rights, and the practice of equality rights. Indigenous and pro-gender equality legislators are strongly urged to resist party directives and stand up against the amendments based on their commitment to constitutional democracy, equality, and freedom. TPP legislators are called upon to leverage their critical position in parliament, transcend political divisions, and oppose the amendments from a rights-protection perspective.

Press Conference Details

Date: Monday, November 18, 2024, 10:00 AM
Location: Entrance of the Chingxian Building, Jinan Road Section 1, Zhongzheng District, Taipei

Participants

• Judicial Reform Foundation 
• Taiwan Economic Democracy Union 
• Citizen Congress Watch
• Covenants Watch Taiwan
• Taiwan Indigenous Youth Public Participation Association
• Taiwan Alliance to End the Death Penalty
• Taiwan Alliance to Promote Civil Partnership Rights
• Taiwan Labor Front
• Taiwan Innocence Project
• Taiwan Association for Human Rights
• Taiwan Criminal Defense Attorney Association
• Taiwan Youth Association for Democracy
• Awakening Foundation
• Hong Kong Outlanders
• Amnesty International Taiwan
• Citizens of the Earth Foundation
• Indigenous Youth Front

Media Contact

• Judicial Reform Foundation
  • Legal Policy Director: Attorney Lu Zheng-yen | Tel: 02-2523-1178 ext. 37 | Email: [email protected]
  • Legislative Assistant: Lin Cheng-ching | Tel: 02-2523-1178 ext. 14 | Email: [email protected]