"Constitutional Court Procedure Act" is Coming: Everyone is Protected by the Constitution to Truly Realize Judicial Reform

Promulgated in 1958, the Constitutional Interpretation Procedure Act underwent its first comprehensive amendment in 1993, and 25 years have passed since. The Legislative Yuan is scheduled to hold caucus consultations on the draft amendment to the Act this Tuesday (12/11). If successfully passed, the draft will be thoroughly revamped and emerge under the new name of the "Constitutional Court Procedure Act." Public expectations for the Grand Justices as the cornerstone of human rights protection are exceptionally high, making this legislative amendment the subject of intense focus. Looking at the current draft, however, it still falls short of comprehensively protecting citizens under the Constitution. We hope that Congress can give us a "Constitutional Court Procedure Act" that firmly defends constitutional values and protects fundamental rights.

First, the draft stipulates that when a law is declared unconstitutional with a "periodic loss of validity," courts at all levels shall, as a principle, continue to apply the unconstitutional law in ongoing trials. However, an unconstitutional law is precisely a law that infringes upon citizens' fundamental rights; for every day it continues to exist, the constitutional order is undermined for another day. Therefore, many scholars hold that, as a rule, courts should apply laws in accordance with the views expressed in the judgments of the Constitutional Court, rather than continuing to apply unconstitutional laws.

Grand Justices Interpretation No. 725 has already stated that periodic loss of validity is intended to "urge competent authorities to enact legislation prudently and thoroughly so as to comply with the intent of this Court's interpretation, yet it does not affect the essence of this Court's declaration that a statute is unconstitutional." Scholars also consider periodic loss of validity to be a demand for the legislature to amend the law within a time limit, while unconstitutionality serves as a declaration directed at law-applying organs, including administrative agencies and courts, prohibiting them from continuing to apply unconstitutional statutes. Consequently, the provisions of the draft clearly fail to align with the intent of the Grand Justices' interpretations.

Furthermore, the draft stipulates that individuals must exhaust all remedies before they can apply for a constitutional review of legal norms. If someone acts ahead of time (in the underlying case) and obtains a constitutional judgment of periodic loss of validity, they can directly apply that judgment; however, for other cases still undergoing trial, the draft prevents those who act later from applying the judgment and forces them to continue applying unconstitutional laws, which is profoundly unfair.

Moreover, the draft's system of constitutional review of judicial judgments allows individuals to apply for constitutional review when a court judgment conflicts with the Constitution. However, this system cannot be applied retroactively to judgments rendered prior to the entry into force of the draft, leaving past unconstitutional judgments—especially grave criminal miscarriage of justice cases involving severe infringements on citizens' rights to life or liberty—trapped in a predicament where they can never obtain a remedy.

Taking the Chiou Ho-shun case as an example, the judgment of the eleventh retrial stated: "The disadvantage of lost evidence should not be borne by the victim and their family members." This clearly violated the presumption of innocence under the protection of the right to constitutional litigation and due process of law. Yet, because the draft does not apply retroactively, Chiou Ho-shun—who was sentenced to death by an unconstitutional judgment—is left without a remedy.

When weighing legal stability against vital fundamental rights such as people's lives and liberties, the demands of legal stability should be moderately balanced. In addition, the Judicial Yuan worries that if the door to retroactivity is opened, the Grand Justices might become overburdened. However, past legislative practices involving retroactivity—including the statutory property regime between husband and wife, lawsuits to disavow parentage, and payment orders—never caused court operations to be paralyzed by the volume of cases following the passage of new laws. Furthermore, the draft already establishes high thresholds as countermeasures for applying for the constitutional review of judicial judgments, such as imposing a two-month application period, mandatory attorney representation, a review panel mechanism, and dismissing applications without stating reasons. Thus, worries about paralyzing the courts appear all the more superfluous.

Taiwan is currently actively promoting transitional justice. When overturning thousands of unlawful judgments rendered during the period of authoritarian rule, volume is by no means a justification for refusing to hear cases. If one stubbornly insists on ignoring the continued unconstitutional existence of such judgments on the grounds that there are "too many" judgments applying for unconstitutional review, the protection of people's rights by the Constitutional Court Procedure Act risks being reduced to mere lip service.

※ Originally published in Apple Daily Real-Time News on Dec. 10, 2018