"Where Will the Irrational Opposition Alliance Lead Taiwan?" — Judicial Reform Foundation Strongly Condemns the Deteriorating Amendment to the Constitutional Court Procedure Act
Judicial Reform Foundation
2024-12-21
2024-12-21
After generations of relentless pursuit, we have finally been able to enjoy democracy, constitutional government, and freedom in Taiwan. We hope that the shared values of freedom and democracy will not be undermined by political divisions.
Yesterday (20th), after the opposition alliance formed by the Chinese Nationalist Party ("KMT") and the Taiwan People's Party ("TPP") seized control of the chairman’s podium with their numerical advantage, they once again passed the amendment to the Constitutional Court Procedure Act through a deeply flawed legislative process. This included voting by raising hands and introducing a last-minute "re-amendment motion" on the floor. The recklessness and roughshod manner in which this legislation was passed surpass even the unconstitutional power expansion case in May. We must ask: Does the opposition alliance regard the Constitutional Court’s Judgment No. 9 (Hsien-Pan) of 2024— which emphasizes respect for legislative power— as merely a license to act arbitrarily? When such procedural abuse becomes the new norm in legislation, the threat it poses to democracy, constitutional governance, and even its potential unconstitutionality is unprecedented. In light of this, the Judicial Reform Foundation ("JRF") hereby issues a solemn warning.
The goal of the amendment to the Constitutional Court Procedure Act proposed by the opposition alliance is to prevent deliberation when the number of justices in the Constitutional Court falls below 10 and to prohibit the Court from declaring a law unconstitutional when fewer than 9 justices remain (the amendment comparison table is attached below). However, as there are currently only 8 justices left in the Constitutional Court, the Court would immediately cease to function once the amendment is promulgated and enacted by the President.
On the other hand, the consent vote for the seven Justice nominees is scheduled for next Tuesday (24th). The KMT has recently expressed its stance, suggesting a possible “total blockade” strategy. Moreover, even if the opposition alliance approves more than two nominees, bringing the number of Justices to 10 or more, the amendment itself may still lead to the Constitutional Court’s paralysis in the future. This is because when Justices’ terms expire, there may be delays in appointing replacements, preventing the Court from maintaining the required number of Justices. As a result, the Constitutional Court, which represents judicial power in supervising other constitutional institutions, will always face the risk of paralysis due to the Legislative Yuan’s unilateral amendment.
From a rational perspective, the opposition alliance’s forceful approach only evokes regret, surprise, and confusion. Before the amendment, the JRF, legal professionals, and numerous scholars had already warned—through various legal arguments—of the constitutional crisis that an improper amendment could trigger. At the same time, we clearly pointed out that, from a comparative law perspective, setting a minimum quorum for the Constitutional Court’s deliberations is not without precedent. Meanwhile, the opposition party is not obligated to unconditionally accept the President’s nominees for Justices. The main issue, however, lies in the fact that if the quorum requirement is raised while judicial appointments are simultaneously obstructed, resulting in vacancies among the Justices, constitutional order will inevitably fall into disarray.
We must openly question: What is the public interest behind this amendment? What rights of the people have been infringed upon by the Constitutional Court that necessitate such an urgent defense by the opposition party? Why does the opposition party seek to paralyze the Constitutional Court under the pretense of oversight and checks and balances?
This amendment is highly controversial. Scholars, lawyers, and politicians have proposed various legal solutions, some even aiming to establish new constitutional conventions. However, none of these solutions are easy paths to take. The opposition alliance could have fully anticipated that the passage of this amendment would not be a decisive resolution, nor would it necessarily achieve their political objectives. They could also foresee that, after forcing this amendment through, the response from other constitutional institutions—trapped in a dilemma—would only further escalate political disputes and turmoil in the country.
We believe that there has been widespread criticism in society regarding this unconstitutional action. The JRF not only strongly condemns the behavior of the opposition alliance, but also hopes that the alliance will recognize the gravity of this issue. We hope that all political parties will realize that the current "hostile" political atmosphere is paralyzing not only government institutions but the entire nation. In this regard, we urge the two opposition parties to handle the consent vote next Tuesday with caution, and not reject candidates merely for the sake of opposition. We call for a halt before completely undermining the separation of powers. Furthermore, with regard to the consent power over judicial nominations, we hope that political parties will not revert to the old practice of binding legislators’ votes based on party discipline. Instead, each legislator should cast their vote based on their personal judgment regarding the nominees' qualifications.
However, regardless of the outcome of the consent vote on the justices, we cannot overlook the intention behind the amendment pushed by the opposition alliance to paralyze the judiciary. To the opposition parties, we hope that wise members within them will respond to society by offering thoughtful proposals, apply the brakes to the current state of disorder, bring politics back to negotiation and dialogue, and ensure that oversight of the ruling party returns to a rational path. To the ruling party, we also expect that when the opposition parties present reasonable demands and supervisory methods that can be publicly evaluated, the ruling party should recognize the necessity of reform and actively ease the atmosphere of confrontation to achieve a political breakthrough.
Regardless of the political turmoil, we hope that the pursuit of democracy, freedom, and constitutional governance that the people of Taiwan have strived for over the past century can become a social consensus that transcends party lines and disagreements.
Attachment: Provisions of the "Constitutional Court Procedure Act" passed by the opposition alliance on third reading on December 20, 2024.
※The red text indicates the revised portion.
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《"Constitutional Court Procedure Act" passed by the opposition alliance |
Current Provisions of the "Constitutional Court Procedure Act" |
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Article 4
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Article 4
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Article 30
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Article 30
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Article 95
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Article 95
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