Nominee Ho Lai-chieh's Response to the Fifteen Questions for Grand Justice Nominees by the Alliance for Citizens' Watch on Grand Justices

Return to Overview

• Focus on Human Rights and Constitutional Issues

1.Looking ahead to your eight-year term, what do you consider to be the most indicative (or your most pressing) constitutional issue or fundamental human rights protection issue?

Answer:

I believe that the provisions concerning fundamental constitutional rights are overly rudimentary and should be amended and supplemented through constitutional amendment. However, the threshold for constitutional amendments stipulated in Article 12 of the Additional Articles of the Constitution is excessively high, making amendment extremely difficult. Although some scholars advocate for declaring this provision unconstitutional and void through normative constitutional review, even if it were to become void, how should the content of the constitutional amendment procedures be revised? Would a public referendum still be required? How should the threshold for public referendums be determined? Should the Constitutional Court address all of these issues simultaneously? Do the Justices of the Constitutional Court possess such judgmental capacity? After all, this is a profoundly significant political issue.

Prior to any constitutional amendment, at the current stage, we can only rely on the Constitutional Court to strengthen the protective function of fundamental rights through constitutional interpretation. Among these, the fundamental human rights issues that I personally concern myself with the most are presumably the principles of due process of law and the presumption of innocence.

2.Regarding past Grand Justice Interpretations or Constitutional Court judgments, please cite an example and explain how you would adopt a different conclusion or a different argumentative approach.

Answer:

in principle, Grand Justice Interpretations or Constitutional Court judgments that have already acquired legal effect should be respected by national constitutional organs (including the Constitutional Court) and possess binding legal force pursuant to Paragraph 1, Article 38 of the Constitutional Court Procedure Act. The Constitutional Court may alter previously effective interpretations or judicial opinions of the Grand Justices, but it must do so with utmost caution—specifically when external circumstances have changed in a way that affects the factual foundation of the ruling, and when failing to reach a different decision would preclude the preservation of proper constitutional systems. After all, the stability of the constitutional order must be maintained.

As I stated in my expert testimony for the Constitutional Court's 2023 Hui-Pan-Tzu No. 14 judgment concerning the recusal of criminal judges, the Supreme Court's "interlocking panel rules" (連身條款) violate the principle of the lawful judge and carry the suspicion of unconstitutionality. However, because the interlocking panel rules have already been abolished by the Supreme Court, they no longer produce legal effects for the future.

3.Are there any constitutional or human rights issues on which you hold a firm constitutional conviction in your mind, yet diverge to a certain extent from the prevailing mainstream views or legal order, or on which diverse and divergent opinions still exist within society?

Answer:

Issues concerning the powers of state organs—specifically whether to maintain the current Five-Power Constitution or adopt the separation of powers constitution commonly recognized in the contemporary international community—should be questions that Taiwan's constitutional order faces with utmost seriousness. However, because this touches upon the framework of the Constitution, quite divergent opinions still persist domestically. I personally advocate adopting a separation of powers constitution, as this better aligns with the constitutional principles of the separation of powers and checks and balances.

As for the protection of fundamental rights, principles such as the presumption of innocence, due process of law, general personality rights, the right to privacy, and the right to informational self-determination should be incorporated into the Constitution in the future.

• International Human Rights Conventions and Constitutional Review

4.Paragraph 16 of the Concluding Observations of the Review Committee for the International Human Rights Covenants in 2022 pointed out: "... 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 an domesticated international human rights covenant conflicts with domestic laws, should it be applied with priority? Or when a conflict arises, should the standard of review in constitutional review be elevated? What is the relationship between the list of rights in international human rights covenants and the categories and content of fundamental rights in our country?

Answer:

Article 141 of the Constitution stipulates that respecting treaties and the Charter of the United Nations is a fundamental national policy of our country. When international human rights covenants are implemented through enforcement acts enacted by the Legislative Yuan, they acquire the legal force of domestic positive law. If an enforcement act of an international human rights covenant conflicts in its application with other positive law, the matter should be resolved in accordance with general principles of legal application. Personally, I believe that certain rights provisions (such as the presumption of innocence and due process) ought to possess a hierarchical status superior to ordinary laws or equivalent to constitutional provisions.

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

Answer:

The fundamental national policy provision in Paragraph 7 of Article 10 of the Additional Articles of the Constitution serves as the constitutional guarantee clause for persons with disabilities. Both the Convention on the Rights of Persons with Disabilities and its implementation act have passed the third reading in the Legislative Yuan and have become positive law in our country. The interpretation and application of the Convention and its implementation act should, in principle, be treated like the interpretation and application of any positive law. Generally speaking, the effectiveness of General Comments made by committees established under international conventions should be valued by courts when applying said conventions.

• Referendums and Constitutional Review

6.Article 12 of the Additional Articles of the Constitution stipulates that amendments to our country's Constitution shall be subject to procedures involving the Legislative Yuan and a public referendum. The constitutional amendment referendum on "18-year-old citizenship rights" held in 2022 failed to pass because it did not reach the passage threshold. In your view, judging from the current constitutional amendment procedures and the implementation of the aforementioned referendum, are the current constitutional amendment procedures and thresholds appropriate? How do you evaluate their impact on Taiwan's democratic operations? Do the provisions of Article 12 of the Additional Articles of the Constitution carry suspicions of unconstitutionality?

Answer:

The threshold for constitutional amendments stipulated in Article 12 of the Additional Articles of the Constitution is excessively high, making amendment extremely difficult. Some scholars advocate for declaring this provision unconstitutional and void through normative constitutional review. However, after declaring it unconstitutional, how should the content of the constitutional amendment procedures be changed? Would a public referendum approach still be required? How should the threshold for public referendums be determined? Should the Constitutional Court address all of these issues simultaneously? Do the Justices of the Constitutional Court possess such judgmental capacity? After all, this is a profoundly significant political issue.

Based on differing political considerations, various countries have established different regulatory methods for constitutional amendment procedures. Germany's current Basic Law abandoned the Weimar Constitution's past practice of utilizing public referendums for constitutional amendments, instead directly authorizing the two houses of parliament to amend the constitution through resolutions. Consequently, apart from differing thresholds for affirmative votes, the constitutional amendment procedure differs very little from the legislative revision procedure (Article 79 of the German Basic Law). This method of constitutional amendment is prompt and efficient, but it also generates frequent amendments to the Basic Law, leaving it in a relatively unstable state.

Our country began constitutional amendments in 1991 (the 80th year of the Republic) through the promulgation of the Additional Articles of the Constitution, and after seven rounds of constitutional amendments, we arrived at the scale of our current constitutional system. Particularly during the final constitutional amendment in 2005 (the 94th year of the Republic), Article 12 was added, altering the constitutional amendment procedure. According to the legislative gazettes of the Legislative Yuan from that year, this provision stemmed from the results of inter-party negotiations, the reason being that the National Assembly was about to be abolished, prompting a shift to public referendums for the exercise of its powers. Although the actual circumstances of the inter-party negotiations and discussions back then remain unknown, from scholars' perspectives, this is the referendum with the highest threshold in the entire world. Adopting a public referendum procedure with such a high affirmative vote threshold inevitably and substantially increases the difficulty of amending the Constitution.

Grand Justices' Interpretation No. 499 held that amending the Constitution involves the stability of the constitutional order and the well-being of all citizens, and should be undertaken by the constitutional amendment organ following proper amendment procedures. Furthermore, constitutional amendment is the most direct manifestation of popular sovereignty and should be conducted openly and transparently to satisfy the conditions of rational communication, thereby conferring the basis of legitimacy upon a constitutional state. According to the intent of this interpretation, although constitutional amendment procedures should be conducted openly and transparently (meaning the constitutional amendment organ cannot adopt a secret ballot method during voting), what exact conditions must be met to be termed a "proper" constitutional amendment procedure cannot be ascertained from the text of this Interpretation.

7.Following the publication of Grand Justices' Interpretation No. 748, several groups opposed to same-sex marriage submitted a referendum proposal to the Central Election Commission (CEC) in January 2018 (concerning whether same-sex marriage should be defined and protected under the Civil Code), and the public referendum was held on November 24 of the same year. Regarding the CEC's administrative disposition announcing the formation of the referendum proposal, certain gay individuals, acting as interested parties and plaintiffs, filed an action for annulment prior to the vote at the Taipei High Administrative Court and applied for a stay of execution of the public referendum procedure. The case was finalized on May 29, 2020, after the Supreme Administrative Court dismissed the plaintiff's appeal in its 2020 Pan-Tzu No. 300 Judgment. The judgment held that the plaintiffs were not interested parties, possessed no subjective public rights, lacked standing to sue, and were not protected under the protective norms theory, while also noting obiter dictum that even if a public referendum proposal violated the Indigenous Peoples Basic Law, it merely meant the CEC had the authority to refuse its proposal formation, and by law the prosecutor—not the indigenous peoples themselves—possessed standing to sue. In your view, what are your thoughts on the aforementioned opinion that even when an interested party's rights are directly infringed, they still lack standing to sue? Regarding a public referendum proposal carrying a high probability of unconstitutionality, how can and should the provisional disposition system stipulated in Article 43 of the Constitutional Court Procedure Act be applied?

Answer:

A public referendum is a method of exercising direct popular will under popular sovereignty; through the direct democratic exercise of a public referendum, the inadequacies of representative politics in indirect democracy can be supplemented. Consequently, in many democratic countries, parliamentary elections and public referendums often proceed in parallel. In our country's public referendum system, at the constitutional level—such as the right of review over proposals for the recall of the President and Vice President under Paragraph 9 of Article 2 of the Additional Articles of the Constitution, the right of review over territorial alteration proposals under Paragraph 5 of Article 4, and the right of review over constitutional amendment proposals under Article 12—all represent specific exercises of public referendums. To implement the realization of constitutional direct democracy, at the level of positive law, the Referendum Act is additionally enacted to specifically regulate the exercise of the constitutional rights of initiative and referendum.

Grand Justices' Interpretation No. 654 also held that the provisions of the Referendum Act granting the Legislative Yuan the authority to submit matters to a referendum do not violate our country's constitutional system of representative democracy principles, and align with the constitutional intent that sovereignty resides in the people and that the people possess the rights of initiative and referendum. Such an interpretation allows for the concurrent implementation and balancing of direct democracy and indirect democracy.

• State Duty of Protection and Constitutional Review

8.At present, the de facto spousal relationships of heterosexual or homosexual cohabiting partners lack clear legal protection. In your view, does the current status quo in our legal system—wherein they are not explicitly protected—constitute an unconstitutional "legislative omission"? Beyond this, what other states of "legislative omission" under the status quo do you believe carry the potential of being evaluated as unconstitutional?

Answer:

Marriage and family ought to be fundamental rights protected by Article 22 of the Constitution, which has been supported by numerous Grand Justice Interpretations, such as Interpretation No. 242. Interpretation No. 712 also held that marriage and family receive institutional protection under the Constitution. Interpretation No. 748, on the grounds of Article 22 protecting the freedom of marriage and Article 7 protecting the right to equality, recognized the legality of the same-sex marriage system. This interpretation should serve as an example of legislative omission being supplemented through Grand Justice interpretation. As for the protection of same-sex or heterosexual cohabitation relationships, whether they can similarly be handled through the constitutional institutional protection of the family remains a matter requiring profound reflection.

 

9.Laws relating to social assistance prioritize the prevention of abuses and establish fictitious income and total household income calculation rules that fail to reflect the economic reality of the impoverished lives of poor people. This results in the severe underestimation of our country's impoverished population. Despite the existence of exclusion clauses (Article 539 provisions), individuals who, for various reasons, no longer contact their families of origin in practice, or who cannot or are unwilling to obtain support from their families of origin (such as victims of domestic violence or adult gay individuals), are still unable to apply for social assistance when facing difficult living conditions. From the perspective of our Constitution and constitutional interpretation practice protecting citizens' social rights, how should constitutional review be conducted regarding legislative or administrative omissions where the state inadequately protects vulnerable groups? Regarding the aforementioned issue concerning the social assistance system, has it infringed upon people's right to survival and other fundamental rights?

Answer:

Grand Justices' Interpretation No. 485 held that promoting people's livelihood and well-being is one of the fundamental principles of the Constitution; hence, the legislature is not barred from enacting laws to distribute welfare resources in a restricted manner. However, given that state resources are limited, legislation concerning social policy must consider the economic and fiscal conditions of the state, follow the principle of effective resource utilization, pay attention to the equal relationship among ordinary citizens, and properly distribute welfare resources.

According to the intent of this interpretation, the principle of the social state protected by the Constitution is not an automatic and absolute guarantee. Aside from considerations of the principle of equality under Article 7 of the Constitution, the principle of statutory reservation must also be implemented, allowing the legislative power to form legislation based on the country's economic and fiscal conditions, considering how to effectively allocate resources. In addition, this must also be protected through the constitutional principle of the social state. Paragraph 7 of Article 10 of the Additional Articles of the Constitution stipulates that the state shall guarantee insurance and medical care for persons with disabilities. This is a fundamental national policy of the state; pursuant to this provision, the legislature should accept the constitutional mandate and guarantee this through the free formation of law.

10.In legal issues concerning climate and environmental change, infringements upon people's rights and interests often stem not from affirmative acts of public authority, 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 about to be infringed or are currently suffering infringement possess standing to sue, thereby enabling them to compel the state to fulfill its duty of protection? If the system fails to provide appropriate remedies, does this infringe upon people's right to litigation?

Answer:

Involving concrete individual cases, it is inconvenient for me to express specific opinions. However, Article 10 of the Additional Articles of the Constitution stipulates that economic and scientific-technological development shall be balanced with environmental and ecological protection; that is, the protection of the right to environment is a fundamental national policy of our country, and the state should attach importance to it. Especially in today's international community, climate change leading to the deterioration of the human living environment is precisely the moment when the state must pay even greater attention to climate change and environmental protection.

• Gender Identity and Fundamental Rights Protection

11.Grand Justices' Interpretation No. 748 pointed out that differential treatment categorized by "sexual orientation" falls within the scope of the right to equality regulated by Article 7 of the Constitution, and should be subject to a relatively strict 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 categorized by "gender identity," what standard of review do you think should be adopted? Do you believe that people's "sexual autonomy" protected by the Constitution includes the "right to gender self-determination"? What are your views on "surgery-free legal gender recognition" (that completing gender-affirming surgery is not a prerequisite for applying to modify gender registration)? If you favor surgery-free legal gender recognition, do you believe modifying gender registration still requires other conditions (such as a psychiatrist's diagnostic certificate), or do you support "free legal gender recognition"?

Answer:

The general personality rights protected by the Constitution include the right to personal self-determination—namely, that individuals may freely decide how to shape themselves, thereby acquiring personal self-identity and a sense of belonging. The personal self-determination of gender roles also falls within the scope of fundamental rights protection under general personality rights. How individuals express themselves through outward appearance (such as clothing) also falls under the protection of general personality rights. If state laws seek to restrict the exercise of general personality rights, just like restrictions on other fundamental rights, they must satisfy the test of Article 23 of the Constitution and be prescribed by law.

Although the Constitution contains no explicit provision regarding the right to physical health, the intent of Grand Justices' Interpretation No. 689 holds that the bodily right to be free from physical and psychological harm, while not a freedom or right explicitly enumerated in the Constitution, nonetheless constitutes a fundamental right protected by Article 23 of the Constitution based on the concept of human dignity and the preservation of individual subjectivity and the free development of personality (Constitutional Court 2022 Hui-Pan-Tzu Nos. 1 and 16 Judgments hold the same view). In addition, Grand Justices' Interpretation No. 785 held that citizens' right to health is a fundamental right protected by Article 22 of the Constitution. Based on the constitutional protection of the right to health, the state likewise bears a certain duty to care for people's physical and mental health. In the formulation of legal systems concerning the right to health, the state bears a minimum duty of protection. According to the intent of this interpretation, the state accordingly bears a state duty of protection regarding the protection of people's right to health.

• Land Expropriation and Fundamental Rights Protection

12.In recent years, land development for major national construction projects has extensively adopted zone expropriation (e.g., Taoyuan Aerotropolis, Taipei Shezidao development projects, MRT development projects, railways), resulting in infringements upon people's right to housing and property rights. In your view, is relying solely on "national economic development" sufficient to constitute the public interest objective for the state to initiate expropriation? Is the "zone expropriation" adopted in our legal system unconstitutional? When disputes involving the eviction of residents living on state-owned land arise, do you believe the state may purely stand upon the position of a private party to assert its ownership rights, without needing to consider the infringement upon residents' fundamental rights such as the right to housing caused by the exercise of public authority?

Answer:

Involving judicial concrete case issues, it is inconvenient for me to express specific opinions. However, Grand Justices' Interpretation No. 400 held that the exercise of property rights by individuals remains subject to social responsibility and environmental-ecological responsibility in accordance with the law, explicitly stating that property rights bear social responsibilities and duties. Grand Justices' Interpretation No. 564 held that, based on the necessity of enhancing the public interest, the state is not barred from imposing reasonable restrictions by law upon land ownership lawfully acquired by people. Grand Justices' Interpretation No. 534 held that land expropriation refers to the compulsory acquisition by the state—pursuant to statutory procedures and for the needs of public utilities—of property rights protected by the Constitution belonging to the people. The requirements and procedures for expropriation prescribed in relevant laws must comply with the principle of necessity stipulated in Article 23 of the Constitution. The intents of these Grand Justice Interpretations all serve as constitutional commandments that the state must observe.

• Protection of Human Rights in Correctional Institutions

13.Grand Justices' Interpretation No. 755 held that denying inmates the ability to seek remedies when prison management measures unlawfully infringe upon their rights and such infringement is not overtly trivial constitutes unconstitutionality. Please answer:

(1) An inmate petitioned a civil society organization, pointing out that prison personnel had inspected their correspondence. The correctional institution subsequently penalized the inmate on the grounds that the matter could not be verified and that the inmate had "defamed prison personnel." In this regard, do you consider the prison's punishment of the inmate appropriate? Does it violate Article 91 of the Prisons Act?

(2) What are your views on the current state in our country where inmates are unable to vote due to the factual circumstances of their confinement?

Answer:

Grand Justices' Interpretation No. 653 held that the right of detained defendants to file lawsuits in court seeking remedies ought to be protected. Grand Justices' Interpretation No. 691 held that when inmates are dissatisfied with administrative decisions denying parole, they should be afforded the opportunity to file lawsuits for remedies. Grand Justices' Interpretation No. 755, meanwhile, substantially opened up pathways for protecting the rights of prison inmates.

Regardless of circumstances, prison and detention center administrative authorities possess the power and responsibility to maintain correctional order, but they must not exceed necessary limits, particularly considering the principle of proportionality, or else they run the suspicion of illegality.

• Equality and Non-Discrimination

14.Regarding a case where a public university expelled a student due to severe discrimination, if such discriminatory conduct has already been determined by other competent authorities and the student "ought to have their opportunity to study restored," can the administrative court annul the unlawful expulsion disposition rendered by the public university, regardless of whether it has been finalized? If annulment is not permitted, how should the court's judgment protect the rights and interests of the discriminated student?

Answer:

Involving judicial concrete case issues, it is inconvenient for me to answer specifically. However, Grand Justices' Interpretation No. 684 already permitted university students to bring lawsuits seeking remedies against administrative actions of universities. Grand Justices' Interpretation No. 784 likewise held that students at all levels of schools possess the right to initiate lawsuits for remedies against school measures (not limited to administrative dispositions). Compared to the past when teacher-student relationships were frequently bound by special power relationships, pathways for legal remedies when students suffer improper dispositions by schools have gradually been opened up through Grand Justice interpretations.

15.To enact an "Anti-Discrimination Act," the government commissioned the research project "Whether Our Country Should Enact a Comprehensive Anti-Discrimination Act and Legislative Proposals" in 2018, and its final report proposed a draft comprising a total of 67 articles. However, regarding the "Draft Anti-Discrimination Act" announced by the Executive Yuan in May 2024, its contents differ considerably from the research project's draft. In your view, what are your opinions on the enactment of an "Anti-Discrimination Act"? Beyond clarifying the right to claim compensation for discriminatory acts, what other contents should an "Anti-Discrimination Act" encompass?

Answer:

Because the Draft Anti-Discrimination Act has entered the legislative process, it is inconvenient for me to comment on the legislative policy of the draft. However, equality and non-discrimination ought to be universal human rights values and legal principles. Due to differing actual conditions and considerations across countries regarding race, politics, society, and economics, matters suspected of discrimination vary among nations, and the means and methods of handling them also differ. Fundamentally, determinations should still be made in light of actual circumstances.