Grand Justices, Come Out of the Closet Boldly!

On June 6, Judicial Yuan Interpretation No. 721 was handed down. On the surface, it ruled that the 5% political party threshold for legislative elections is constitutional. However, this was merely a side dish; the real main course is whether Taiwan's judicial power can truly stand shoulder-to-shoulder with the executive and legislative branches in a genuine system of separation of powers and checks and balances. The Grand Justices are stirring yet hesitant, wearing expressions that suggest they want to come out of the closet just like the maiden behind the decorated screen.

The separation of powers is a phrase everyone knows by heart. The division and mutual checking of the executive, legislative, and judicial branches are the ABCs of constitutionalism. Although sovereignty resides with the people, universal participation in politics is practically impossible, so citizens delegate power to representatives. Consequently, the legislature enacts laws, the executive implements laws according to law, and the judiciary adjudicates according to law.

Can a Constitution Be "Unconstitutional"?

That a law may raise issues of unconstitutionality is easy to understand, because the constitution ranks higher than ordinary laws. If a law does not conform to the provisions of the constitution, it is unconstitutional and loses its validity. The question is, can the constitution itself be "unconstitutional"? This proposition seems logically difficult to sustain. To borrow the phrasing of Grand Justice Li Chen-shan: "How can truth ever contradict itself?"

Furthermore, since the constitution is already supreme and fundamental, what "higher" standard or "more fundamental" principle can be invoked to "accuse" constitutional provisions? In fact, whether it is Carl Schmitt dividing the constitution into "constitutional laws" and "the constitution proper," arguing that parts of the constitution are "unalterable/unammendable"; or Hans Kelsen advocating the "thesis of value-relativism" while still admitting the existence of a "basic norm" superior to the constitution. That is to say, the constitution (or certain parts of it) may potentially violate the "constitutional charter" or the "basic norm."

Can the Grand Justices Declare the "Constitution Unconstitutional"?

The next question is, "who" has the authority to speak these words, and who has the power to point out a "constitution beyond the constitution"? The "theory of limits on constitutional amendments" consistently mentioned by the Grand Justices in Interpretation No. 721 primarily targets the legislature. In other words, the legislature can amend the constitution, but within a certain scope; this limit is that it cannot exceed or violate the "constitutional charter" or the "basic norm."

What is the "constitutional charter" or the "basic norm"? According to Interpretation No. 721, the most widely agreed-upon meaning refers to "those provisions within the text of the constitution that possess essential significance and form the foundation for the existence of the normative order," such as: the "principle of a democratic republic" in Article 1, the "principle of popular sovereignty" in Article 2, the "core content of the protection of people's fundamental rights" in Chapter 2, and the principles concerning the "separation of powers and checks and balances."

What about the judiciary? Logically, the legislature legislates and constitutionalizes, the judiciary must "adjudicate according to law," and the Grand Justices must interpret "according to the constitution." Even if the constitution can be divided into two parts—a more core part of "essential significance" (within the constitution), or a "basic norm" higher than the constitution (outside the constitution)—which the legislature cannot exceed or violate when amending the constitution, this does not mean the judiciary can directly declare the "non-essential" or "non-basic norm" parts to be "unconstitutional."

The spheres of exercise for legislative power and judicial power can be questions on two different levels. Indeed, taking Grand Justice Su Yung-chin as an example, he argued that based on the "principle of separation of powers and checks and balances," the judiciary lacks public sentiment and democratic legitimacy, and therefore—except in "extreme" circumstances—cannot directly declare the "constitution unconstitutional," as doing so would infringe upon the powers of the legislature.

By inverse deduction, at least in "extreme" circumstances, the judiciary can do so. In fact, Interpretation No. 499 long ago broke through the front lines, setting a judicial precedent for declaring the "constitution unconstitutional." This also indicates that our nation not only recognizes that "constitutional amendments have limits" and the legislature "cannot do as it pleases," but further acknowledges that the judiciary can declare the legislature's "doing as it pleases" to be unconstitutional, affirming its own role as the "guardian of the constitution.">

The Height of the Political Party Threshold Is Merely a Side Dish

Compared to the seriousness and fundamental nature of the aforementioned issues, the issue of setting a 5% threshold for legislative elections is a mere piece of cake. Whether the 5% threshold is reasonable—even if stipulated "within the constitution"—the Grand Justices can "of course" critique it. The higher the threshold, the more discrepancy there will naturally be between legislative seats and vote shares. Exactly how much discrepancy constitutes an infringement upon the "essence" or "basic norm" of the constitution?

Ranging from weak to strong on the spectrum, some view this as not yet "extreme"—this is how Interpretation No. 721 views it: it is not as if small parties have never crossed this threshold, hence the petition was dismissed, or reluctantly accepted, but a declaration of unconstitutionality was refused. Others, from the perspective of the "democratic principle" and the "sovereignty principle," argue that the 5% threshold is too high and already unconstitutional. Still others, from the perspective of the "fundamental right to equality," argue that it hinders the competition and survival of small parties, ignores diverse opinions and voices, and is likewise unconstitutional.

Grand Justice Li Chen-shan is all the more courageous in taking up responsibilities, manifesting "judicial activism" by asserting that when there is a "clear violation of the liberal-democratic constitutional order" and "when representation fails," the judiciary should take more proactive action. Moreover, "if this avoids or mitigates a series of 'civil disobedience,' 'peaceful resistance,' or other fierce anti-government protests, thereby contributing to the maintenance of constitutional order, its inspiring significance would be extraordinary."

He earnestly stated: "In any event, the liberal-democratic constitutional order is indeed hard-won and difficult to maintain, and is even fraught with blood-stained historical memories; it is worth everyone's utmost effort to protect it!" Contrasting these remarks with the courts following the 318 Sunflower Student Movement, which have successively issued a number of judgments affirming social protests, it seems the judicial power is advancing in a vibrant and responsible direction!

Within the realistic context of Taiwan's executive branch wielding autocratic dominance and a weak, ineffectual legislature, what the judicial power should perhaps demonstrate is a bit more activism. Judges, in the face of democracy, sovereignty, and the fundamental rights of the people, please step out of the shadows and boldly come out of the closet!