The Judicial Reform Foundation's Comments on the Amendments to the Constitutional Court Procedure Act

1. The Constitutional Court shall, after accepting or dismissing a petitioned case, publish the petition and the statement of defense on the Constitutional Court's website.
2. Where a petition or statement of defense contains matters that should be restricted from public disclosure, only the remaining parts may be published.
3. The methods for publishing petitions and statements of defense and the matters subject to restricted disclosure shall be determined by the Judicial Yuan.

1. The Constitutional Court shall, after accepting a petitioned case, publish the petition and the statement of defense on the Constitutional Court's website.
2. Where a petition or statement of defense contains matters that should be restricted from public disclosure, only the remaining parts may be published.
3. The methods for publishing petitions and statements of defense and the matters subject to restricted disclosure shall be determined by the Judicial Yuan.

1. The Foundation supports the proposal by the New Power Party Caucus. The supplementary reasons are as follows:
   1. According to statistics from the Constitutional Court up to the end of November 2022, a total of 613 cases were concluded, among which 578 cases (94.29%) were dismissed by ruling. This shows that the vast majority of constitutional litigation cases conclude with a dismissal without acceptance.
   2. Paragraph 3 of Article 32 and Paragraph 2 of Article 61 both stipulate that dismissal rulings must be accompanied by reasons. However, in judicial practice, it is indeed questionable whether the Constitutional Court can reliably explain the reasons for non-acceptance in dismissed cases. Taking Constitutional Ruling Nos. 209, 731, 732, and 733 of 2022 as examples, the rulings on one hand pointed out that the petitioners claimed Article 4, Paragraph 1 of the Narcotics Hazard Prevention Act (hereinafter referred to as the Disputed Provision) infringed upon personal liberty and violated the principles of equality, proportionality, and criminal responsibility commensurate with the offense, thereby contradicting Articles 7, 8, 15, and 23 of the Constitution; on the other hand, the rulings held that the petitioners' claims "merely contested the appropriateness of the court's finding of facts and application of law, and failed to specifically point out how the Disputed Provision applied in the final and binding judgment contradicted the Constitution." To the petitioners and the general public, this is practically no different from failing to provide reasons at all.
   3. Addressing the aforementioned phenomenon, Grand Justice Chan Sen-lin (詹森林), joined by Grand Justices Hsu Tzong-li (許宗力) (in Section IV, Conclusion), Huang Hong-hsia (黃虹霞), and Hsieh Ming-yang (謝銘洋), pointed out in the dissenting opinion for Case No. Hui-Tai-Tzu 13188: "...This judge dares not assert when the Grand Justices will finally have the courage to uniformly 'meet the ball head-on' regarding constitutional interpretation petitions filed by institutions, citizens, and judges that meet the requirements, accepting them and rendering interpretations on whether they are unconstitutional or constitutional, or whether they will still from time to time resort to the banner of 'what the petitioner has expressed can hardly be said to have put forward specific reasons capable of objectively forming a conviction that the Disputed Provision is unconstitutional,' thereby 'leaving explanations un-given.'"
   4. Cases currently concluded with a dismissal actually encompass both legally flawed petitions and petitions deemed manifestly devoid of merit. For cases where petitions are deemed manifestly devoid of merit, in order to remedy the shortcoming of failing to thoroughly discuss the reasons, and considering that constitutional litigation is an objective litigation with a high degree of public interest, it is necessary to simultaneously publish the petitions of dismissed cases. This will benefit the public and professional communities in understanding the constitutional doubts and claims already dismissed by the Constitutional Court, and facilitate further analysis of non-repetitive constitutional claims. Consequently, this can also reduce instances where the Constitutional Court has to handle constitutional interpretation petitions based on similar reasoning.
2. Aside from accepted cases, since the implementation of the new system, 10 cases can be found on the Constitutional Court website where petitions were published despite being dismissed. These circumstances are:
   (1) Any Grand Justice submits a concurring or dissenting opinion.
   (2) Dismissal by ruling pursuant to the latter part of Article 32 of this Act.
3. The publication practice under "2" above is certainly commendable. Therefore, even if the New Power Party Caucus's proposal is not adopted, Paragraph 1 still requires amendment. It is hereby suggested to amend as follows: "
   1. The Constitutional Court shall publish petitions and statements of defense on the Constitutional Court's website under the following circumstances:
      1. After accepting a petitioned case.
      2. Cases dismissed by ruling pursuant to Article 32, Paragraph 2.
      3. Cases where Grand Justices submit opinions pursuant to Article 35."

1. Individuals, agencies, or organizations other than the parties and interested parties who consider themselves to have relevance to a case tried by the Constitutional Court may apply for a ruling of permission from the Constitutional Court to submit professional opinions or information of reference value within a prescribed period, for the reference of the Constitutional Court.
2. Applications under the preceding paragraph shall be made in writing, stating the relevance ; where an application requests a ruling of permission to submit professional opinions, the applicant's stance and the gist of their arguments shall additionally be stated.
3. The period during which an application for a ruling of permission from the Constitutional Court under Paragraph 1 may be made shall be three months starting from the date the petition , statement of defense, or written opinion of an interested party is published ; if the case is announced by the Constitutional Court for oral argument, the period shall be recalculated as two months starting from the date of the announcement of the oral argument date. However, if the former period is otherwise announced, it shall run until the announced deadline.
4. When individuals or organizations other than the parties and interested parties make an application under Paragraph 1, the provisions of Paragraph 5 of Article 19 shall apply mutatis mutandis. The same shall apply when they submit professional opinions or information pursuant to a ruling of permission.
5. When individuals, agencies, or organizations other than the parties and interested parties submit professional opinions or information pursuant to a ruling of permission, they shall appoint litigation agents.

6. The qualifications and number of the litigation agents in the preceding paragraph shall be governed mutatis mutandis by the provisions of Article 8.
7. When trying a case, if the Constitutional Court deems it necessary to notify individuals, agencies, or organizations other than the parties and interested parties permitted by ruling to appear in court to explain and state their opinions, a written notice shall be served.
8. A person permitted by ruling of the Constitutional Court under Paragraph 1 who is subsequently designated by the Constitutional Court as an interested party shall have the permission ruling invalidated.

1. Individuals, agencies, or organizations other than the parties and interested parties who consider themselves to have relevance to a case tried by the Constitutional Court may apply for a ruling of permission from the Constitutional Court to submit professional opinions or information of reference value within a prescribed period, for the reference of the Constitutional Court.
2. Applications under the preceding paragraph shall be made in writing, stating the relevance ; where an application requests a ruling of permission to submit professional opinions, the applicant's stance and the gist of their arguments shall additionally be stated.
3. The period during which an application for a ruling of permission from the Constitutional Court under Paragraph 1 may be made shall be two months starting from the date the petition is published. However, if otherwise announced, it shall run until the announced deadline.
4. When individuals or organizations other than the parties and interested parties make an application under Paragraph 1, the provisions of Paragraph 5 of Article 19 shall apply mutatis mutandis. The same shall apply when they submit professional opinions or information pursuant to a ruling of permission.
5. When individuals, agencies, or organizations other than the parties and interested parties submit professional opinions or information pursuant to a ruling of permission, they shall appoint litigation agents.
6. The qualifications and number of the litigation agents in the preceding paragraph shall be governed mutatis mutandis by the provisions of Article 8.
7. When trying a case, if the Constitutional Court deems it necessary to notify individuals, agencies, or organizations other than the parties and interested parties permitted by ruling to appear in court to explain and state their opinions, a written notice shall be served.
8. A person permitted by ruling of the Constitutional Court under Paragraph 1 who is subsequently designated by the Constitutional Court as an interested party shall have the permission ruling invalidated.

1. Individuals, agencies, or organizations other than the parties who consider themselves to have relevance to a case tried by the Constitutional Court may apply for a ruling of permission from the Constitutional Court to submit professional opinions or information of reference value within a prescribed period, for the reference of the Constitutional Court.
2. Applications under the preceding paragraph shall be made in writing, stating the relevance.
3. When individuals or organizations other than the parties submit professional opinions or information pursuant to a ruling of permission, the provisions of Paragraph 3 of the preceding article shall apply mutatis mutandis.
4. When individuals, agencies, or organizations other than the parties submit professional opinions or information pursuant to a ruling of permission, they shall appoint agents whose qualifications and number shall be governed by the provisions of Article 8.
5. When trying a case, if the Constitutional Court deems it necessary to notify individuals, agencies, or organizations other than the parties permitted by ruling to appear in court to explain and state their opinions, a written notice shall be served.
6. Where individuals, agencies, or organizations under Paragraph 1 submit professional opinions or information and the opinions or information are cited by a party, they shall be deemed as statements made by such party.

The Foundation supports the proposal by the New Power Party Caucus. The supplementary reasons are as follows:

1. Under the Judicial Yuan's draft version, calculating the time limit solely from the date of publication of the petition would make it difficult, after the expiration of the period, for other experts and professional organizations to submit supporting or opposing opinions regarding the opinions and factual statements of government agencies (i.e., interested parties) which are of utmost practical importance. This would prevent the Constitutional Court from fully grasping the diverse professional opinions of all parties.
2. To address the aforementioned problem while balancing the Constitutional Court's burden of reviewing amicus curiae briefs, the Foundation version provides that the publication of the statement of defense or the written opinions of interested parties shall also have the effect of resetting the calculation period.
3. Furthermore, although the proviso already covers circumstances where oral argument is held and a separate announcement is made, whether to issue an announcement still appears to fall within the discretionary power of the Constitutional Court. Since holding oral arguments has the effect of making relevant constitutional controversies prominent and promoting public discussion, for cases undergoing oral argument, it is necessary to widely collect professional opinions from all parties again within a certain period following the announcement, which is therefore explicitly stipulated in the proviso.

1. The Constitutional Court may consolidate several separately filed petitions for joint trial, and may render a joint judgment ; where they are tried jointly, one or several of the petitioned cases may be designated for oral argument.
2. The petitioners of several consolidated petitions for joint trial may, by consensus, recommend one or several of the petitioned cases for oral argument. The Constitutional Court shall designate the case(s) for oral argument from among the aforementioned recommended cases.
3. Where the Constitutional Court designates one or several petitioned cases for oral argument pursuant to Paragraph 1, it shall still notify the parties, interested parties, and their litigation agents of the unselected petitioned cases of the oral argument date, shall make every effort to provide seating for public gallery observation or other real-time communication methods, and shall reserve appropriate speaking time for them to make supplementary statements.
4. Where a petitioner files a petition regarding multiple matters in a single petition, the Constitutional Court may try them separately and render separate judgments.

Article 24

1. The Constitutional Court may consolidate several separately filed petitions for joint trial, and may render a joint judgment; where they are tried jointly, one or several of اليساره petitioned cases may be designated for oral argument.
2. Where a petitioner files a petition regarding multiple matters in a single petition, the Constitutional Court may try them separately and render separate judgments.

Article 24

1. The Constitutional Court may consolidate several separately filed petitions for joint trial, and may render a joint judgment. However, if the legal norms or controversies petitioned for review are identical, the Constitutional Court shall consolidate accepted petitions for joint trial.
2. Where a petitioner files a petition regarding multiple matters in a single petition, the Constitutional Court may try them separately and render separate judgments.

The Foundation supports the proposal by the New Power Party Caucus. The reasons cited from their explanation are as follows:

1. The proviso of Paragraph 1 of the current provisions stipulates that if the legal norms or controversies petitioned for review are identical, the Constitutional Court shall consolidate the accepted petitioned cases for joint trial. However, mandating the joint trial of all cases with identical legal norms or controversies petitioned for review actually impairs the efficiency of case adjudication. Furthermore, Article 41 already stipulates that the Constitutional Court shall declare by ruling that the effect of a judgment extends to other cases that petitioned based on the same legal norms or controversies but were not timely consolidated, which already provides an appropriate way to handle pending cases that have not been consolidated; hence, this proviso is deleted. Moreover, cases consolidated by the Constitutional Court are frequently due to identical legal norms or controversies petitioned for review. Considering that the intents and arguments of consolidated petitioners in oral arguments are often shared, and that oral arguments conducted by the Constitutional Court—except for case types in Chapters V and VI—are discretionary oral arguments by nature without any rule requiring a judgment to be based on oral argument, it is explicitly stipulated that the Constitutional Court may designate one or several petitioned cases for oral argument to enhance the efficiency of case adjudication by the Constitutional Court.
2. Additionally, considering the legitimacy and credibility of the Constitutional Court's judgments, part of it is also established upon adjudicatory procedural designs that open up opportunities for participation. As James L. Gibson states, "legitimacy is for losers"; whether one is able to express opinions in the desired form before a decision is made is one of the factors considered by parties whose arguments are not adopted as to whether they accept and endorse the decision. To uphold the credibility of the Constitutional Court and balance judicial economy, Paragraphs 2 and 3 are added to explicitly provide that the Constitutional Court shall respect the case representatives recommended by the petitioners of consolidated cases, that unselected parties shall still receive notice of oral argument, and that the Constitutional Court shall make every effort to provide on-site public observation or other communication methods enabling connection to the site, reserving a certain amount of time during the proceedings for them to make supplementary statements. Their forms of participation and length of time are technical and detailed matters suitable for determination by the Judicial Yuan.
3. Paragraph 2 of the original article is moved to Paragraph 4. According to statistics from the Constitutional Court up to the end of November 2022, a total of 613 cases were concluded, among which 578 cases (94.29%) were dismissed by ruling. This shows that the vast majority of constitutional litigation cases conclude with a dismissal without acceptance.

1. For cases deemed by the Constitutional Court to have no necessity for oral argument, briefing sessions may be convened, notifying parties, interested parties, and their litigation agents, as well as individuals, agencies, or organizations other than the parties and interested parties to appear in court to explain and state opinions.
2. In circumstances under the preceding paragraph, the provisions of Paragraphs 1 to 3 of Article 24, Article 27, and Paragraphs 1 and 2 of Article 28 shall apply mutatis mutandis.
3. After briefing sessions are convened by the Constitutional Court for a petitioned case, oral arguments may still be held.

1. The Foundation supports the proposal by the New Power Party Caucus. The reasons cited from their explanation are as follows:
   (1) This article is newly added.
   (2) The so-called "briefing session" is an opinion-exchange mechanism previously adopted based on Article 13, Paragraph 1 of the Constitutional Interpretation Procedure Act. Following the implementation of the Constitutional Court Procedure Act, the Constitutional Court may still, depending on the circumstances of individual cases, hold briefing sessions pursuant to Article 19, Paragraph 1 of the Constitutional Court Procedure Act to conduct adjudication. However, Article 19 only confers upon the Constitutional Court the power ex officio to notify people to provide explanations, without stipulating the procedural positioning and methods of "briefing sessions." Since this Act has adopted fully judicialized and trial-like procedures, and briefing sessions are part of the adjudication process—even though they belong to a more flexible system with discretionary methods and do not require a norm density comparable to oral arguments—they should still satisfy the most basic requirements of due process of law, such as clearer procedural legal bases and basic notice and participation requirements, so as to uphold the legitimacy and credibility of the Constitutional Court while respecting the procedural interests of the parties. Therefore, Paragraphs 1 and 2 of this article are added.
   (3) If the Constitutional Court deems that a case truly necessitates oral argument after holding a briefing session, it may switch to holding oral arguments, which is explicitly stipulated in Paragraph 3.