Alliance Response | Open to Public Scrutiny, Grand Justice Nominees Cannot Evade Responsibilities ~ A Response to the Joint Statement by Grand Justice Nominees

This questionnaire is divided into two parts. Basic questions are mandatory; optional questions may be answered freely.

Basic Questions (Nine questions in total)

• International Human Rights Conventions and Constitutional Review

  1. Paragraph 16 of the Concluding Observations of the 2022 International Review Committee on International Human Rights Conventions states: "...where existing or subsequently enacted regulations conflict with the two Covenants, the status of the two Covenants must be further clarified. The Review Committee emphasizes that the two Covenants, as the two most important human rights conventions of the United Nations, should be given priority consideration." In your view, when domesticated international human rights conventions conflict with domestic laws, should they take precedence? Or when conflicts arise, should the standard of review for constitutional review be heightened?

  2. Article 10, Paragraph 7 of the Additional Articles of the Constitution provides that the state shall guarantee the employment assistance, livelihood maintenance, and relief for people with disabilities, and assist them in self-reliance and development. Paragraph 3 of General Comment No. 6 on the domesticated Convention on the Rights of Persons with Disabilities further points out: "...the denial of reasonable accommodation constitutes discrimination." In your view, does the content of this General Comment possess legal binding force? In constitutional review, do you consider laws or judgments that violate the "principle of reasonable accommodation" to be an infringement upon the right to equality, and should they be subject to a strict standard of review?

• Referendums and Constitutional Review

  3. Following the promulgation of Judicial Yuan Interpretation No. 748, certain anti-same-sex marriage groups submitted a referendum proposal to the Central Election Commission (CEC) in January 2018 (regarding whether same-sex marriage should be defined and protected under the Civil Code), and the referendum was held on November 24 of the same year. Regarding the administrative disposition by the CEC announcing the formation of the referendum proposal, individuals identifying as same-sex couples filed an action for revocation as interested parties before the Taipei High Administrative Court prior to the vote, and applied for a suspension of the execution of the referendum procedure. The case was finalized on May 29, 2020, after the Supreme Administrative Court dismissed the plaintiffs' appeal in Judgment 109-Pan-300, holding that the plaintiffs lacked the status of interested parties, subjective public rights, standing to sue, and that the protection norm theory was inapplicable. It additionally noted that even if a referendum proposal violates the Indigenous Peoples' Basic Act, the CEC alone has the authority to disapprove its establishment, and prosecutors hold the standing to sue by law, whereas indigenous peoples themselves do not. What are your views on the aforesaid legal opinion that even when an interested party's rights are directly infringed, they still lack standing to sue? Regarding a referendum proposal with a high probability of unconstitutionality, how can and should the provisional disposition system prescribed in Article 43 of the Constitutional Court Procedure Act be applied?

  4. Article 12 of the Additional Articles of自由 the Constitution stipulates that amendments to the Constitution of the Republic of China shall be subject to the procedure of proposal by the Legislative Yuan and ratification by citizens. The 2022 constitutional amendment ratification proposal on "Enfranchisement at Age 18" failed to pass as it presumably did not reach the threshold. In your view, judging from the current constitutional amendment procedures and the implementation of the aforesaid ratification proposal, are the current constitutional amendment procedures and thresholds appropriate? How do you evaluate their impact on Taiwan's democratic functioning? Does Article 12 of the Additional Articles of the Constitution raise constitutional doubts?

• Gender Identity and Protection of Fundamental Rights

  5. Judicial Yuan Interpretation No. 748 stated that differential treatment based on "sexual orientation" falls within the scope of the right to equality guaranteed under Article 7 of the Constitution and should be subject to a stricter standard of review. In your view, does our Constitution protect people's "gender identity"? What is the basis and extent of such protection? Regarding differential treatment based on "gender identity," what standard of review should be adopted? Do you believe that the people's "sexual autonomy" protected by the Constitution includes the "right to gender self-determination"? What are your opinions on "surgery-free legal gender recognition" (where applying for a change of gender registration does not require completing gender reassignment surgery as a prerequisite)? If you support surgery-free legal gender recognition, do you believe that changing gender registration still requires other conditions (such as a psychiatrist's diagnostic certificate), or do you support "freedom of gender recognition"?

• Land Expropriation and Protection of Fundamental Rights

  6. In recent years, land development for major national infrastructure projects has extensively adopted zone expropriation (such as the Taoyuan Aerotropolis, Taipei Shezi Island development project, MRT development projects, and railway developments), causing infringements upon people's rights to housing and property. In your view, is citing solely "national economic development" sufficient to constitute the public interest purpose for the state to initiate expropriation? Is the "zone expropriation" adopted in our legal system unconstitutional? When disputes involve evicting residents living on state-owned land, do you believe the state may purely stand in the position of a private party to assert its ownership rights without considering the infringement of public power upon residents' fundamental rights such as the right to housing?

• State Duty to Protect and Constitutional Review

  7. Currently, de facto spousal relationships of cohabiting heterosexual or homosexual partners lack explicit legal protection. In your view, does the current status quo in our legal system lacking explicit protection for them constitute an unconstitutional "legislative omission"? Furthermore, what other states of "legislative omission" under the current status quo do you think are likely to be evaluated as unconstitutional?

  8. Social assistance-related laws prioritize the prevention of abuses. Despite having exception clauses (Article 539 clause), they still lead to situations in practice where individuals who, for various reasons, no longer maintain contact with their families of origin, or are unable or unwilling to obtain support from them (such as domestic violence survivors or adult homosexuals), cannot apply for social assistance when experiencing financial distress. In your view, from the perspective of our Constitution and constitutional jurisprudence protecting people's social rights, what are the standards and scope of constitutional review regarding legislative or administrative omissions where the state provides insufficient protection for vulnerable groups? Regarding the aforementioned issue concerning the social assistance system, has it infringed upon people's right to survival?

  9. In legal issues concerning climate and environmental change, infringements upon people's rights and interests often stem not from affirmative actions of public power, but from state omissions or insufficient actions (such as carbon emission policies). In your view, under extreme weather scenarios, do vulnerable groups whose rights are imminent or being infringed possess the standing to sue so as to compel the state to fulfill its duty to protect? If the system fails to provide appropriate remedies, does it infringe upon people's right to litigation?

Optional Questions (Five questions in total)

1. In your view, is the death penalty unconstitutional? Synthesizing domestic law and domesticated international human rights conventions, do you believe our country has an obligation to abolish the death penalty? Do you favor the abolition of the death penalty? Regarding policies related to the death penalty (whether abolition, gradual abolition, or maintenance), what improvements or complementary measures do you think should be implemented?

2. Constitutional Court Judgment 111-Wen-Pan-8 emphasizes the importance of respecting the wishes of minor children and their statements of opinion. However, if the court consults minor children, it may also place them in the middle of their parents' disputes. Regarding methods to safeguard the best interests of the child, this merits discussion. Do you agree with the reasoning of this judgment and the resulting outcome? What are your opinions on appropriate methods for consulting minor children?

3. Constitutional Court Judgment 112-Wen-Pan-1 did not alter the legal opinion of Interpretation No. 728 of 2015, holding that ancestral property ancestral associations (jishigongye) can exclude female-line descendants from inheritance rights simply by "customizing their own bylaws." What are your views on this opinion? Does this opinion comply with the intent of Article 7 of our Constitution protecting people's right to equality?

4. What are your opinions on Judicial Yuan Interpretation No. 748 and same-sex marriage? Do you have a religious faith? If so, does it influence your opinions on the aforementioned issues?

5. In your view, are LGBTI groups guaranteed equality in fact and under law? Does constitutional law provide appropriate pathways to ameliorate deficiencies in their protection? When the right to self-determination of LGBTI individuals regarding their bodies, appearance, and living environment conflicts with social values, how should it be addressed? Do you think male police officers and military personnel should be allowed to wear long hair? If you have a religious faith, does it affect your opinions on the fundamental rights of LGBTI groups?