Will the "Parliamentary Reform" Controversy Reach the Constitutional Court? - 5 Constitutional Litigation Tips for Citizens

Today (May 28), amidst considerable controversy, the Legislative Yuan passed the third reading of the Act Governing the Legislative Yuan's Power and other bills concerning "parliamentary reform." Whether the ruling party will subsequently initiate "constitutional litigation" has garnered intense public attention.

Regarding how the Grand Justices might handle this controversy, the JRF has compiled 5 simple Q&As.

1. What is constitutional litigation? What function does it serve in this controversy?
2. Will the Grand Justices accept this case?
3. The bills have already passed their third reading; will they take effect and apply right away?
4. To what extent do flaws in the legislative procedure render it unconstitutional?
5. Is it possible that the passed statutory provisions are unconstitutional?

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1. What is constitutional litigation? What function does it serve in this controversy?

Pursuant to Articles 47 and 49 of the Constitutional Court Procedure Act, the Executive Yuan and one-fourth or more of all legislators may petition for constitutional litigation regarding the Act Governing the Legislative Yuan's Power passed by the opposition coalition. If the ruling party intends to file a petition, there are no major procedural obstacles. Should the Constitutional Court accept the case, it must render a judgment of unconstitutionality or constitutionality. Given the nature of this controversy, if the Grand Justices accept the case based on its constitutional significance, there are several possible ways they may pronounce judgment:

1. Unconstitutional legislative procedure: If it is determined that the legislative procedure suffered from severe flaws, regardless of the content passed, both the legislative act and the enacted laws shall be null and void. Should the Legislative Yuan wish to pass laws with the same content, it must deliberate anew, and the procedure must no longer harbor severe flaws.

2. Unconstitutional statutory content: If it is determined that the content of the newly passed laws contradicts the Constitution, it may be directly declared void. Furthermore, within the scope of the contradiction, the Legislative Yuan may no longer pass laws with the same intent. If such a declaration is made, it will likely target individual provisions one by one rather than declaring all passed provisions unconstitutional in a blanket manner. Therefore, it will mostly likely be a declaration of partial unconstitutionality and partial constitutionality.

3. Constitutional: The Grand Justices deem the legislative procedure or the content of the laws to be constitutional, rendering the passed laws valid.

It must be noted that the above three types of declarations can coexist within the same judgment; the Grand Justices may simultaneously declare flaws in the legislative procedure and then address individual provisions one by one, declaring them unconstitutional or constitutional. Conversely, the Grand Justices may also conclude that the flaws in the legislative procedure did not reach the threshold of unconstitutionality, while still declaring the content of certain provisions unconstitutional.

2. Will the Grand Justices accept this case?

If legislators jointly file a petition, the Grand Justices, when deciding whether to accept the case, may consider whether it falls under a "failed legislative amendment" scenario.

Simply put, because legislators can directly propose legislative amendments ex officio if they believe a law is unconstitutional, there is no need to resort to the Grand Justices. Therefore, it is necessary to restrict the circumstances under which legislators may petition for constitutional litigation to prevent all legislative amendment controversies from flooding the Constitutional Court. In conclusion, as a rule, legislators must have previously proposed a legislative amendment that failed (i.e., "failed legislative amendment") before they can petition for constitutional litigation.

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