Mock Constitutional Court Holds Epoch-Making Significance

Can homosexuals also legally marry and legally adopt children? Guided by former Grand Justice Hsü Yü-hsiu and organized by the Institute of Technology Law at National Chiao Tung University, the Mock Constitutional Court completed its simulated constitutional debate on this issue not long ago at the MOTC The Center for Idea Taipei, and will deliver its ruling this coming Friday (August 1). Regardless of the ruling's outcome, the convening of this Mock Constitutional Court oral argument holds epoch-making and significant importance for innovating legal education models, deepening discussions on major social issues, and refining and enhancing the way the Grand Justices review and interpret cases. Having been privy to the preparation of this mock court course beforehand, subsequently followed the issues discussed, and ultimately attended the entire oral argument process in person, the author deeply feels the necessity and value of recording and sharing this to bear witness to and document this grand event in the legal community.

First, simulated courtroom debates are not a novel legal teaching method either domestically or abroad. When I was studying at an American law school, I also took a comprehensive trial advocacy course. The course invited actual judges to teach, with students respectively playing the roles of counsel for both sides. Through the practical operation of courtroom litigation procedures, they learned how to successfully conduct courtroom arguments. At the time, I already believed that this learning-by-doing teaching method had far better learning outcomes than unilateral lectures and instruction by teachers. Moreover, this Mock Constitutional Court was not merely an operation of a simulated constitutional court; it used actual, major social controversies as debate themes, invited the two opposing sides of the actual social controversy to appear in court for debate, and then formed a Grand Justices collegiate panel composed of teachers and participating students (all practicing lawyers) who specialize in constitutional law and this issue to simulate issuing a constitutional ruling, attempting to propose constitutional solutions for the controversial issues. Such curriculum design makes legal education not merely about education itself, but also generates substantive interaction with society, and even directly provides feedback to society through education and learning. This is precisely proof of innovative teaching models.

Second, whether homosexuals may legally marry and adopt children is a highly controversial social issue. Not adopting the majority legislative route, but instead conducting constitutional review through courtroom proceedings, can be said to be a higher-level challenge. Unlike the majority legislative process where everyone might speak their own mind and make their own appeals, constitutional court debates are tantamount to establishing a dialogue platform, enabling all parties to more honestly face themselves and others' opinions. During the debate on that day, from whether gender is ultimately an essential difference or merely a performance, to marriage as a system pre-existing the constitution and the degree of unconstitutional review it should accept, there were brilliant clashes of opinions. At the same time, multiple constitutional interpretation solutions were sparked, including: reinterpreting the Civil Code to mean that spouses have never excluded same-sex partners, adding provisions in the marriage chapter of the Civil Code for same-sex partners to apply mutatis mutandis, separately enacting a same-sex partner marriage law, respecting traditional value orders and awaiting social change, etc. For clearly presenting the problem and deepening the discussion, this Mock Constitutional Court debate indeed deserves tremendous credit.

Finally, this Mock Constitutional Court adopted an open and transparent practice that current Grand Justices should adopt but have not yet implemented—using the internet in advance to make public the petition for constitutional interpretation, and accepting spontaneous submissions of opinions from all citizens to become amicus curiae, so as to comprehensively consider all opinions existing in society. Because Grand Justices interpretations have abstract and universal effect, they can bind the people and agencies nationwide. Taking the same-sex marriage examined this time as an example, there are numerous citizens and groups in society concerned about this issue. The Grand Justices' interpretation result not only affects the petitioner and relevant agencies, but is even more likely to change society's preconceived impression and definition of family, shaping a new landscape of family in society. If the Grand Justices were indeed to accept such a petition for interpretation, yet failed to let all potentially affected people know in advance that such an important case is under deliberation by the Grand Justices and have the opportunity to express opinions, how could the interpretation result establish its legitimate foundation? The practice of this Mock Constitutional Court provides the best illustration and reference for the openness and transparency of the Grand Justices' adjudication methods.

We deeply anticipate that this Mock Constitutional Court can bring about a pervasive, exemplary effect. Series of highly anticipated Mock Constitutional Court debates will thus emerge. And we believe that this transformative power will ultimately prompt the actual Grand Justices to bravely accept more social challenges, allowing the Constitution to evolve with society and truly become the fundamental law safeguarding human rights for the nation.