Nominee Liu Ching-yi's Responses—The Alliance of Citizen Supervision over Grand Justice Nominees' Fifteen Questions for Nominees

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• 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 concerned) constitutional issue or fundamental human rights protection issue?

A:

Among the accepted cases currently pending before the Constitutional Court, there are quite a few constitutional issues and fundamental human rights protection issues of indicative significance. Therefore, please forgive the nominee for being unable to discuss specific issues involved in already accepted cases. Furthermore, given the increasingly obvious influence of digital technology, as well as the gradual and widespread application of artificial intelligence in both the public and private sectors, many human rights risks and challenges that we have never experienced before are brought forth. Consequently, in recent years, "digital constitutionalism" has also become an emerging legal issue. The nominee looks forward to utilizing her research expertise in information law and technology law over the next eight years, as well as her experience of long-term participation in international organizational activities related to artificial intelligence over the past several years and serving as an international organization expert (please refer to the personal autobiography and resume contents), to dedicate herself to the realization of technological human rights.

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

A:

Taking Grand Justices' Interpretation No. 689, in which the nominee once served as litigation counsel, as an example, that Interpretation declared constitutional the provision of Paragraph 2, Article 89 of the Social Order Maintenance Act, which imposes a fine of up to NT$3,000 or a reprimand for "following others without justifiable reason and failing to heed dissuasion." Through the method of constitutional interpretation, that Interpretation held that if news reporting possesses public interest and the reporting method is not considered intolerable according to general social consensus, it constitutes a "justifiable reason" for exemption from punishment under this article. This Interpretation affirmed that news reporting is protected by the Constitution and revealed the principle of balancing freedom of the press with the protection of others' privacy rights. It is an important judgment rendered by our Grand Justices in the field of freedom of speech, especially freedom of the press.

However, the term "without justifiable reason" lacks clarity, and the argumentative model of Interpretation No. 689 still reserves the authority for police agencies to first judge whether an actor possesses a justifiable reason, with the actor only able to seek relief from the court ex post. This is tantamount to leaving open the possibility for the executive branch to exercise prior restraint on news reporting. Even though that Interpretation issued a special warning in its reasoning that consideration should be given to shifting the power to impose fines to the courts, in reality, the provision in question has still not been amended to this day. Given that Interpretation No. 689 still falls short in protecting freedom of the press, the nominee believes that the Constitutional Court at that time should have declared the aforementioned provision unconstitutional based on reasons such as legal clarity, due process of law, and the proportionality principle. This was also what the nominee advocated when serving as the petitioner's litigation counsel in this case.

3. What constitutional or human rights issues are there upon which you hold a firm constitutional conviction in your mind, yet which maintain a certain distance from the current stable mainstream views or legal order, or upon which diverse and divergent opinions still exist within society?

A:

Currently, there still exist high degrees of divergence within society regarding many constitutional systems and human rights issues, such as the parliamentary investigation powers and the abolition or retention of the death penalty, which have been repeatedly mentioned during the Legislative Yuan's Grand Justice nomination review process. Even though the Constitutional Court has rendered judgments on the above issues, different voices clearly persist within the political branches and civil society. The nominee is perhaps unsuited to prematurely disclose her mental appraisal regarding specific cases that may come before the Constitutional Court in the future, nor is she suited to presumptuously second-guess what mainstream public opinion might be during the review process. Nevertheless, the nominee believes that the Constitutional Court is not only a constitutional organ for resolving major constitutional and human rights disputes, but also possesses the function of promoting democratic deliberation. Through judgments, it proclaims the fundamental values of the Constitution, assisting society in engaging in dialogue under the premise of complying with constitutional principles, respecting one another amidst divergences, and thereby seeking consensus. Therefore, in her future adjudication work at the Constitutional Court, the nominee will not only make constitutional judgments and reasoning based on professional conscience, but will also endeavor to bridge social divergences, bringing into play the function of constitutional interpretation in guiding society toward a more progressive and inclusive realm.

• International Human Rights Conventions and Constitutional Review

4. Paragraph 16 of the Concluding Observations of the 2022 International Review Committee on International Human Rights Conventions pointed out: "... In situations 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." Do you think that domesticated international human rights conventions should be applied with priority when they conflict with domestic laws? Or in the event of a conflict, should the standard of review for constitutional review be elevated? What is the relationship between the rights catalog of international human rights conventions and the categories and content of fundamental rights in our country?

A:

Article 2 of the Enforcement Act of the Two Covenants stipulates: "The provisions of the Covenants for the protection of human rights as revealed therein shall have the effect of domestic law." Therefore, in terms of legal hierarchy, the hierarchy of the Enforcement Act of the Covenants is not higher than that of general domestic laws; their legal effects should be equal. However, based on the later enactment date of the Enforcement Act, one might argue that pursuant to the principle that "a later law supersedes an earlier law," the Enforcement Act possesses the possibility of priority application. Secondly, Article 8 of the Enforcement Act of the Two Covenants also explicitly stipulates: "Government agencies at all levels shall, in accordance with the provisions of the Covenants, review the laws, regulations, and administrative measures under their jurisdiction. Where there is any inconsistency with the provisions of the Covenants, they shall complete the formulation (promulgation), amendment, or repeal of laws and regulations and the improvement of administrative measures within two years after the enforcement of this Act." However, fifteen years have passed since the enforcement of the Enforcement Act of the Two Covenants, and government agencies at all levels have not in fact completed the mandate prescribed by this article. Therefore, when conflicts arise between laws and regulations or administrative measures under the jurisdiction of government agencies at all levels and the human rights protection provisions of the two Covenants, the nominee believes that reference can be made to the legislative intent of the two Covenants and the interpretations of the United Nations Human Rights Committee during legal interpretation or constitutional review. As for other laws enacted after the Enforcement Act of the Two Covenants, unless such laws explicitly exclude the applicability of the effect of the Enforcement Act of the Covenants, the effect of the Enforcement Act of the Covenants remains equal to that of general laws. If a conflict of legal interpretation arises, it relies on the courts to resolve the legal conflict in individual cases.

If a constitutional litigation case involves international conventions or the enforcement acts of international conventions, it does not necessarily mean that the standard of review must be elevated. After all, international conventions are not the Constitution. However, international conventions can serve as balancing factors for the Constitutional Court in individual cases and help enrich the content of constitutional fundamental rights. For instance, Constitutional Judgment No. 7 of 2023 [The Case Concerning the Establishment of Enterprise Labor Unions in Plants and Factories] cited Article 22, Paragraph 1 of the International Covenant on Civil and Political Rights and Article 8, Paragraph 1 of the International Covenant on Economic, Social and Cultural Rights to interpret that laborers' organizing of labor unions to exercise rights such as collective bargaining and labor disputes enjoyed by laborers are constitutional judgment precedents protected by the Constitution.

5. Paragraph 7, Article 10 of the Additional Articles of the Constitution stipulates that the employment guidance, livelihood maintenance, and assistance for individuals with disabilities shall be guaranteed, and their self-reliance and development shall be assisted. Paragraph 3 of General Comment No. 6 of the domesticated Convention on the Rights of Persons with Disabilities (CRPD) further points out: "... The denial of reasonable accommodation constitutes discrimination." Do you think the content of this General Comment possesses legal binding 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 warrant a strict standard of review?

A:

Article 2 of the Enforcement Act of the Convention on the Rights of Persons with Disabilities (CRPD) stipulates: "The provisions of the Convention for the protection of human rights of persons with disabilities as revealed therein shall have the effect of domestic law." Article 3 stipulates: "The laws, regulations, and administrative measures applicable to the provisions of the Convention shall refer to the intent of the Convention and the interpretations of the United Nations Committee on the Rights of Persons with Disabilities regarding the Convention." Therefore, when applying CRPD General Comments domestically, they should serve as references for interpreting how CRPD provisions ought to be applied, and cannot be equated with individual CRPD provisions so as to deem General Comments as possessing the effect or binding force of legal hierarchy. The core concept of the CRPD is equality and non-discrimination; hence, the denial of reasonable accommodation does indeed have the potential to cause an infringement upon the right to equality. However, our country's past constitutional interpretation practice in interpreting the right to equality focuses on whether differential treatment is reasonable and necessary, which differs slightly in interpretive pathway from the CRPD. Therefore, whether the denial of reasonable accommodation constitutes an infringement upon the right to equality still depends on individual cases.

Similarly, in our country's past constitutional practice, regarding the standard of review for the right to equality, it has been determined based on "whether the classification is sensitive (belonging to a suspect classification)" and whether the differential treatment "involves important fundamental rights" to decide whether the standard of review should be elevated. Conversely, the principle of reasonable accommodation requires the government to take active action, which involves the government's planning of resource and budget allocation, as well as issues of competition and crowding-out effects in the allocation of limited resources. This differs from the purpose of constitutional review in traditional cases of right to equality violations, which aims to make the government cease discriminatory acts infringing upon the right to equality. The nominee believes it is inappropriate to conduct judicial constitutional review using the same review approach.

Nevertheless, the nominee also agrees that, viewing Paragraph 7 of Article 10 of the Additional Articles of the Constitution and the CRPD principle of reasonable accommodation together, they indeed carry the implication of imposing a positive obligation of action upon the state, and the judiciary should also moderately pay attention to and supervise whether the political branches genuinely fulfill this obligation. In the future, whether facing the review of the right to equality or the review of cases involving other fundamental rights of persons with disabilities, the nominee also tends to incorporate such state positive obligations into consideration.

• 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 the procedures of the Legislative Yuan and a national referendum. The constitutional amendment referendum case of "Voting Rights at Age 18" held in 2022 failed to pass because it did not reach the passage threshold. From the perspective of the current constitutional amendment procedure and the practice of the aforementioned constitutional amendment referendum case, do you think the current constitutional amendment procedure and threshold are appropriate? How do you evaluate their impact on Taiwan's democratic operations? Does Article 12 of the Additional Articles of the Constitution raise any doubts of unconstitutionality?

A:

In legal theory, according to the difficulty of amending a constitution, constitutions can be divided into flexible constitutions and rigid constitutions. Our country belongs to a rigid constitution, possessing a relatively high constitutional amendment threshold and greater difficulty in amending the constitution. Rigid and flexible constitutions are merely choices with different characteristics; it is difficult to say which is superior or inferior. The design of a rigid constitution aims to avoid frequent alterations of constitutional principles and the basic framework of government, preventing transient democratic overheating or radical constitutional amendment proposals, while also thereby safeguarding the constitutional fundamental rights of democratic minorities from being infringed upon or oppressed by a temporary simple majority consensus.

In addition, a rigid constitution does not necessarily preclude constitutional change. Various state organs, and even the people, can assist and facilitate substantive constitutional change. Taking the 2022 constitutional amendment referendum case on voting rights at age 18 held in our country as an example, the Constitution does not necessarily cause a direct restriction on civic rights, and the legislative branch can also provide a constitutional legislative interpretation regarding at what age one acquires civic status. Therefore, under the premise that constitutional change remains possible, the constitutional amendment threshold regulated in Article 12 of the Additional Articles of the Constitution of the Republic of China does not abstractly and necessarily violate the democratic principle and the principle of popular sovereignty. As for whether the constitutional amendment procedure and threshold prescribed in Article 12 of the Additional Articles of the Constitution of the Republic of China are appropriate, and their impact on democratic operations? The answer to this question ought to be judged by the parliament, which possesses higher democratic legitimacy, rather than being evaluated by the judiciary as a surrogate. Taking the aforementioned 2022 "Voting Rights at Age 18" constitutional amendment referendum case as an example, it can be seen that the procedure for the Legislative Yuan to propose constitutional amendments is not insurmountably difficult as long as there is a consensus between the ruling and opposition parties. At this time, the real problem is instead how to increase voter turnout and citizens' willingness to political participation.

Regarding the question raised in this inquiry as to whether Article 12 of the Additional Articles of the Constitution is unconstitutional, the nominee believes that the Additional Articles of the Constitution are themselves a part of the Constitution. Whether compared with the main text of our Constitution or other provisions of the Additional Articles, upon interpretation, there should be no question of unconstitutionality here. Assuming the purpose of this inquiry is to understand whether the constitutional amendment procedure and threshold of Article 12 of the Additional Articles of the Constitution violate constitutional boundaries, one may perhaps refer to the internal boundaries of the constitutional self-defense mechanism elucidated in the reasoning of Interpretation No. 499, such as the principles of a democratic republic, popular sovereignty, fundamental rights, and the separation of powers, which constitute essential internal contents of the Constitution. Therefore, viewed from the constitutional amendment procedure and threshold set by Article 12 of the Additional Articles of the Constitution, there is no obvious issue of formally contradicting the aforementioned internal constitutional boundaries. As for future concrete cases, because the facts of a case may affect the evaluation of its constitutionality, the nominee cannot specifically answer this question in advance.

7. After the promulgation of Judicial Yuan Interpretation No. 748, several groups opposing 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 by the Civil Code), and a national referendum was held on November 24 of the same year. Regarding the administrative disposition of the CEC announcing the establishment of the referendum proposal, certain comrades (LGBTQ+ individuals), in the capacity of interested parties as plaintiffs, filed an administrative revocation lawsuit before the Taipei High Administrative Court prior to the voting and applied for a stay of execution of the referendum procedure. The case was finalized on May 29, 2020, by the Supreme Administrative Court's Judgment No. 300 of 2020, which dismissed the plaintiffs' appeal. It held that the plaintiffs were not interested parties, lacked subjective public rights, lacked standing to sue, and that the protection-norm theory was not applicable, and additionally pointed out: Even if a referendum proposal violates the Indigenous Peoples' Basic Act, it merely means the CEC has the authority to disapprove the establishment of the proposal, and by law the prosecutor possesses the standing to sue, whereas indigenous peoples themselves do not. What are your views on the aforementioned perspective which holds that an interested party lacks standing to sue even if their rights are directly infringed? Regarding a referendum proposal with a high possibility of unconstitutionality, do you think the provisional measure system prescribed in Article 43 of the Constitutional Court Procedure Act can be utilized, and if so, how?

A:

The core dispute of this inquiry lies in how to define an interested party in a referendum proposal. Article 2 of the Referendum Act stipulates: "Referendums referred to in this Act include national and local referendums. National referendums, apart from provisions of the Constitution, shall apply to the following matters: 1. The review of laws. 2. The initiation of legislative principles. 3. The initiation or review of major policies. Local referendums shall apply to the following matters: 1. The review of local autonomous regulations. 2. The initiation of legislative principles of local autonomous regulations. 3. The initiation or review of major policies on local autonomous matters. Budgets, taxes, salaries, and personnel matters shall not serve as referendum proposals." Therefore, when determining an interested party in a referendum proposal, it should be judged based on the legal review, initiation of legislative principles, and initiation or review of major policies enumerated in the aforementioned provisions. Accordingly, upon interpretation, because a referendum proposal involves the issue of whether a proposal is established and whether the CEC approves it, the interested parties should be limited to the lead proposer and the competent authority prescribed by the Referendum Act; persons having the right to vote on the referendum proposal are not yet direct interested parties. Therefore, this inquiry may stem from a misunderstanding of the Referendum Act. As for whether one possesses litigation capacity, it is a question of the application of legal interpretation in individual cases, and please forgive the nominee for not expressing opinions on individual cases here.

In addition, Paragraph 1, Article 43 of the Constitutional Court Procedure Act stipulates: "While a petition case is pending, to avoid schwerer/irreparable major damage to rights or public interests protected by the Constitution, and there is an urgent necessity with no other means available for prevention, the Constitutional Court may, upon petition or ex officio, render a ruling on a provisional measure regarding matters such as related disputes, application of legal norms, or execution of judgments in the underlying cases." The provisional measures prescribed in the Constitutional Court Procedure Act shall be premised upon the case already being pending before the Constitutional Court, and must meet the requirements prescribed in the provision, namely "to avoid irreparable major damage to rights or public interests protected by the Constitution, and there is an urgent necessity with no other means available for prevention." Therefore, if an individual referendum case appropriately petitions for constitutional interpretation in accordance with the Constitutional Court Procedure Act or other laws, and the individual case meets the requirements of Article 43 of the Constitutional Court Procedure Act, the Constitutional Court naturally has the necessity to render a provisional measure.

However, what the nominee wishes to supplement and explain here is that regarding the issue mentioned in the inquiry concerning referendum proposals submitted by groups opposing same-sex marriage after Interpretation No. 748, the Judicial Yuan in fact already explained on December 13, 2018, how to handle situations where the principles of legislative creation passed after the adoption of such referendum proposals conflict with constitutional interpretations: "1. Grand Justices of the Judicial Yuan exercise the power of interpreting the Constitution in accordance with the Constitution. When doubts arise as to whether a law contradicts the Constitution, it shall be interpreted by the Judicial Yuan. Therefore, interpretations made by the Grand Justices regarding the Constitution have the binding effect on all state organs and the people nationwide. The legislative responsibility of the Legislative Yuan based on democratic legitimacy to enact or amend laws to meet the actual needs of a changing society falls within the scope of legislative formulation and its inherent authority. However, based on the principles of the separation of powers and the binding effect of the Constitution upon the legislative power, it naturally cannot exceed the provisions of the Constitution and the constitutional interpretations made by the Grand Justices of the Judicial Yuan (refer to the reasoning of Interpretation No. 662 of this Court). 2. According to the provisions of the Referendum Act, the Executive Yuan shall swiftly propose a bill and submit it to the Legislative Yuan for deliberation regarding the legislative principles created and passed by a national referendum proposal; however, laws completed through deliberation under this procedure still belong to the legal hierarchy and shall not contradict the Constitution, nor shall they contradict Judicial Yuan interpretations possessing equivalent effect to the legal hierarchy of the Constitution. 3. Interpretation No. 748 of this Court has already elucidated the intent that 'two persons of the same sex, for the purpose of managing a life together, establish an intimate and exclusive permanent union relationship, which is marriage freedom and the right to equality protected by the Constitution; relevant authorities shall complete the amendment or formulation of relevant laws in accordance with the intent of this Interpretation within two years from the date of promulgation of this Interpretation. As for what form it should take (for example, amending the Chapter on Marriage in the Civil Code, establishing a separate chapter in the Part on Family of the Civil Code, enacting special legislation, or other forms), it falls within the scope of legislative formulation.' This Interpretation is a constitutional interpretation, possesses an effect equivalent to the hierarchy of the Constitution, and regarding the legislative principles created by National Referendum Proposal No. 10 and Proposal No. 12, relevant authorities should also note not to contradict the intent of the above Interpretation when drafting and deliberating relevant laws." In summary, even if the public initiates what the inquiry calls a "referendum proposal with a high possibility of unconstitutionality," if the result passed by its voting clearly contradicts past Judicial Yuan interpretations or Constitutional Court judgments, because Judicial Yuan interpretations and Constitutional Court judgments possess an effect equivalent to the constitutional hierarchy, they should still take the intent of Judicial Yuan interpretations and Constitutional Court judgments as their guiding principle, and there should be no concern of altering the effect of Judicial Yuan interpretations or Constitutional Court judgments through such referendum results.

• State Duty of Protection and Constitutional Review

8. Currently, de facto spousal relationships of heterosexual or homosexual cohabiting partners lack explicit legal protection. Do you think that the current status of lacking explicit legal protection for them under our legal system constitutes unconstitutionality by "legislative omission"? In addition, what states of "legislative omission" under the current status do you think have the possibility of being evaluated as unconstitutional?

A:

Whether "legislative omission" is unconstitutional depends on whether the situation of legislative omission has violated our Constitution's protection of the fundamental rights of the people. Therefore, the mere lack of explicit protection does not automatically constitute unconstitutionality. Taking the "de facto spousal relationship" mentioned in the inquiry as an example, what should be considered here is: Is a de facto spousal relationship a fundamental right that the Constitution ought to protect? Is it within the scope of protection guaranteed by enumerated fundamental rights in the Constitution upon interpretation? What is the degree of protection required? Or does it need to be shaped by the Grand Justices with reference to constitutional fundamental values, foreign legislation, legal theory, and our society's development? The nominee believes that such issues currently have no settled conclusion and must await the development of our academic community and legal practice before a relatively specific and clear content of rights can emerge. Please forgive the nominee for temporarily reserving her opinion and declining to hastily express views.

If we discuss solely the declaration of unconstitutionality for legislative omission, in reality, it is the judiciary bypassing the legislature to enact law through constitutional adjudication. Although feasible, it is undeniable that democratic legitimacy is indeed relatively low. Therefore, if in a concrete case there is sufficient evidence to support that a specific group finds it difficult to shape legal systems through advocacy channels in a democratic society, and the state of legislative omission they face has already caused an infringement upon fundamental rights, it ought to be evaluated as unconstitutionality by legislative omission. However, under the procedural rules prescribed by the current Constitutional Court Procedure Act, individuals petitioning for the review of legal norms or judicial judgments for unconstitutionality must exhaust relief channels against specific legal norms or administrative acts. Under such procedural rules, it seems relatively difficult to argue unconstitutionality by legislative omission. Nevertheless, other pathways for reviewing legal norms for unconstitutionality, such as petitions by a minority of legislators, presiding judges, or government organs, still make it possible for legislative omission to face declarations of unconstitutionality.

9. Social assistance-related laws prioritize the prevention of abuses and establish fictitious income and total household income calculation regulations that do not conform to the economic and living reality of impoverished individuals, resulting in a severe underestimation of our country's impoverished population. Despite the existence of exception conditions (Article 539 clause), this still causes individuals who, for various reasons in practice, no longer contact their families of origin, or cannot or are unwilling to obtain support from their families of origin (such as domestic violence survivors or adult homosexuals, etc.), to be unable to apply for social assistance when falling into livelihood difficulties. From the perspective of our Constitution and the protection of people's social rights in constitutional interpretation practice, how should constitutional review be conducted regarding legislative or administrative omissions where the state provides insufficient protection for vulnerable groups? Regarding the aforementioned issues concerning the social assistance system, have they infringed upon people's right to subsistence and other fundamental rights?

A:

The situation described in this inquiry may be an issue of legislative policy or institutional design, and does not necessarily directly equate to legislative or administrative omissions by the state involving insufficient protection for vulnerable groups. As for whether relevant legislative or administrative measures infringe upon people's right to subsistence or other fundamental rights and are thus unconstitutional, from the perspective of constitutional review, it should be evaluated based on the circumstances of individual cases targeting the object petitioned for interpretation. However, based on the nominee's observation, in the field of social rights, the dilemma faced by constitutional practice is often that the judicial branch itself has no budget power and lacks relevant expertise. Consequently, it is difficult to demand through constitutional adjudication that the political branches provide social relief for individual cases. Therefore, under the current constitutional adjudication system, a more probable handling method is to demand through warning judgments or simple declarations of unconstitutionality that the political branches shape an appropriate social assistance system.

However, from a slightly more active perspective, the regulations related to our country's social assistance involve the determination of the poverty line. Freedom from poverty can be said to be a basic condition of subsistence, and subsistence is the foundation for realizing various fundamental human rights. Whether fictitious income under the current system can appropriately reflect an individual's livelihood-earning capacity, whether taking the family as a unit aligns with the actual reality of people's lives and mutual assistance today, and whether the proportion of our country's impoverished population is comparable to that of advanced countries, all leave room for further examination. The nominee has also explained in her expert opinion in Interpretation No. 781 [The Case Concerning Retirement Benefits for Military Officers and Non-Commissioned Officers of the Army, Navy, and Air Force] that the public annuity system should essentially be dynamically adjusted, allowing the executive and legislative branches to jointly review the financial revenue and expenditure balance of the retirement and survivor relief funds to ensure their long-term operation. By the same token, calculation methods such as fictitious income or total household income should also be adjusted at any time by the political branches with reference to factors such as the annual consumer price index, minimum wage, and per capita purchasing power, so as to conform to the purpose of the social assistance system and the actual needs of the people.

Finally, it is worth mentioning that based on the principle of the separation of powers and checks and balances, while the protection of social rights indeed involves the allocation of state resources and the judiciary should therefore strive to adopt a stance of respecting the decisions of the political branches, nevertheless, if it can be confirmed that there is a major impact on maintaining people's minimum living standard and human dignity, the Constitutional Court may still moderately intervene to review whether the social welfare system complies with the intent of protecting people's right to subsistence.

10. In legal issues concerning climate and environmental change, the infringement upon people's rights and interests often stems not from active acts of public power, but from state omissions or insufficient actions (such as carbon emission policies). Under extreme climate scenarios, do you think that vulnerable groups whose rights are about to be infringed or are suffering infringement possess the standing to sue, enabling them to compel the state to fulfill its duty of protection? If the system fails to provide appropriate means of relief, does this infringe upon people's right to judicial protection?

A:

Standing to sue ought to be judged by individual ordinary courts, especially administrative courts, regarding the norms applied in individual cases. In particular, the situation described in this inquiry bears a considerable degree of similarity to ongoing litigation cases and constitutional interpretation petitions. Therefore, please forgive the nominee for not expressing concrete opinions. However, as an abstract principle, what climate litigation directly concerns is the life (subsistence) rights of the next generation of people, and the political branches indeed ought to fulfill a certain degree of prevention obligation regarding climate change. As for failing to fulfill the obligation or fundamentally failing to fulfill the obligation that ought to be fulfilled, it indeed has the possibility of violating constitutional requirements. The dimension that ought to be emphasized here should not be limited to the right to judicial protection alone.

• Gender Identity and Protection of Fundamental Rights

11. Judicial Yuan Interpretation No. 748 points out that differential treatment based on "sexual orientation" as a classification standard falls within the scope of the right to equality regulated by Article 7 of the Constitution, and a relatively strict standard of review should apply. Do you think our Constitution protects people's "gender identity"? What is the basis and degree of protection? Regarding differential treatment based on "gender identity" as a classification standard, what standard of review do you think should be adopted? Do you think people's "right to sexual autonomy" protected by the Constitution includes the "right to gender self-determination"? What are your opinions on "surgical-free gender marker change" (applying to change gender registration without the prerequisite of completing sex reassignment surgery)? If you support surgical-free gender marker change, do you think changing gender registration still requires other conditions (such as a psychiatrist's diagnostic certificate), or do you support "free gender marker change"?

A:

Gender identity and the right to gender self-determination are both important fundamental rights protected by Article 22 of the Constitution. Therefore, cases involving related rights should at least adopt an intermediate standard of review. On the issue of the right to gender self-determination, the nominee believes that persons with full legal capacity should have 100 percent self-determining authority over their own gender. However, many systems in society are still constructed around gender. Therefore, how gender identity and the right to gender self-determination reconcile with other rights or endure social obligations awaits more dialogue in our society to help the active development of gender-related legal systems. The constitutional judgment on the issues raised in this inquiry requires a more in-depth and rigorous analysis of the impact level and justification of fundamental rights in order to determine the justification of using "gender" as the basis for normative classification, and whether imposing respective corresponding obligations in normative means can pass constitutional review.

Regarding the issue of "surgical-free gender marker change" mentioned in the inquiry, the relevant legal source is currently only the administrative ruling directive (Order No. Nei-Shou-Hu-Zi-0970066240 issued by the Ministry of the Interior on November 3, 2008). This directive states that when household registration authorities accept applications for gender change registration, regardless of male-to-female or female-to-male, a diagnostic certificate evaluated and appraised by two psychiatric specialists is required, along with a surgery completion diagnostic certificate issued by a qualified medical institution stating that the original sex organs have been removed. In the past, there have been administrative litigation judgments holding that based on the right to gender self-determination, recognizing that one's gender identity can be changed, whether a person's original external physical organs are removed does not have a substantial and important connection to the judgment of whether gender identity affiliation changes. Requirements demanding such integrity of harming people's physical health for other purposes also do not conform to the proportionality principle, and transgenders should not be required to undergo sex reassignment surgery to remove their original physical sex organs before completing the legal recognition procedure for gender affiliation; otherwise, it violates the proportionality principle and the principle of equality. Therefore, such judgments ordered household registration authorities to process gender change registration in accordance with citizens' requests. In addition, another judge petitioned for constitutional interpretation regarding the aforementioned Ministry of the Interior directive; however, because the object petitioned for interpretation was not a "law," it was not accepted by the Constitutional Court. Therefore, the nominee believes that it can be seen from the above cases that "surgical-free gender marker change" lacks clear and specific legal provisions in our country. As for whether to affirm people's right to "surgical-free gender marker change" and what the content of such rights is, based on the basic principles of the division of labor among different branches of power, it is appropriate for the executive and legislative branches to first shape specific norms before judges have the power to review whether relevant norms violate fundamental rights guaranteed by the Constitution.

• Land Expropriation and Protection of Fundamental Rights

12. In recent years, land development for major state construction projects has massively adopted district expropriation (such as the Taoyuan Aerotropolis, Taipei Shezidao development projects, MRT development projects, and railways), causing infringements upon people's right to housing and property rights. Do you think that the sole ground of "state economic development" is sufficient to constitute the public interest purpose for the state to initiate expropriation? Is the "district expropriation" adopted in our legal system unconstitutional? When controversies involving the eviction of residents living on state-owned land arise, do you think the state may purely stand in the position of a private party to assert its ownership rights without considering the infringement upon residents' fundamental rights such as the right to housing by public power?

A:

This inquiry ought to be judged based on individual cases. However, regardless of whether state economic development or other grounds are used, concerning the justification of land expropriation, what should be considered is not merely the formal public interest purpose. For instance, in practice, Supreme Administrative Court Judgment No. 816 of 2020 has already explained: "Thus, it is known that land expropriation is a purposeful mandatory infringement by the state upon people's property rights protected by the Constitution. It is the final, inescapable measure taken by the state to realize the public interest of undertaking public enterprises. Therefore, expropriation, whether general expropriation or district expropriation, shall not only strictly comply with the expropriation requirements and procedures prescribed in relevant laws, but shall also conform to the necessity and proportionality principles prescribed in Article 23 of the Constitution and Article 7 of the Administrative Procedure Act, so that the public interest intended to be realized, the existing public interest, and the maintenance of private interests can be balanced. To put it simply, expropriating private land shall possess: (1) Public interest: Expropriating private land for undertaking public enterprises contributes to the achievement of the public interest purpose of such public enterprises. (2) Necessity: The acquisition of project land for the public interest purpose intended to be achieved by the aforementioned public enterprises shall first be pursued through negotiation methods with owners, such as negotiated purchase, joint development, establishment of superficial rights, or donation. If negotiations fail, compulsory expropriation is then applied. (3) Compliance with the proportionality principle: After balancing the public interest purpose intended to be achieved by expropriating private land to undertake public enterprises against the private interest of property damage caused to people by the compulsory deprivation of property through expropriation and the interests maintained without expropriation, it is confirmed that the damage caused by undertaking the public interest enterprise is not grossly disproportionate to the interest of the purpose intended to be achieved, thereby complying with the proportionality principle prescribed in Article 23 of the Constitution and Article 7 of the Administrative Procedure Act... Only then is the compulsory expropriation of private land lawful."

Therefore, when conducting land expropriation, regardless of its purpose, the focal point of consideration should be placed on the public interest and necessity of the expropriation purpose. When conducting constitutional review, it must comply with the requirements regarding the proportionality principle and due process of law under Article 23 of the Constitution and Article 7 of the Administrative Procedure Act. Such due process requirements have also been elucidated in Judicial Yuan Interpretations No. 709 and No. 739. By the same token, regarding whether the district expropriation cases are unconstitutional, consideration must still be given to factors such as whether the purpose of implementing district expropriation in individual cases is justified, whether the means and purpose conform to the proportionality principle, and whether statutory procedures are met. As for whether Article 4 of the Land Expropriation Act itself is unconstitutional, it should be answered by future case-by-case constitutional interpretations, and it is inappropriate for the nominee to express an opinion here.

As for when the state intends to evict residents living on state-owned land, because the state itself is the object against which fundamental rights are asserted, regardless of whether it acts in the capacity of a landowner under the Civil Code or as an expropriating agency under land expropriation, its acts of evicting residents and the impact on residents' fundamental rights such as property rights and freedom of residence ought to comply with the requirement of the proportionality principle under Article 23 of the Constitution.

• Protection of Rights in Correctional Institutions

13. Judicial Yuan Interpretation No. 755 held that disallowing inmates from filing legal remedies when prison management measures unlawfully infringe upon their rights and such infringement is not overtly minor is unconstitutional. Please answer the following:

(1) An inmate petitioned a civil organization, pointing out that prison personnel had inspected their correspondence. The prison subsequently punished the inmate on the grounds that investigation found no such matter and that the inmate had "damaged the reputation of prison personnel." In this regard, do you think the prison's punishment of the inmate is appropriate? Does it violate Article 91 of the Enforcement Act of the Execution of Sentence?

A:

Because similar cases have already been pointed out as flaws in the Control Yuan's Investigation Report (111-Szu-Tiao-0041), which proposed corrections to relevant agencies, based on the fundamental principle of respecting other constitutional organs, please forgive the nominee for not expressing opinions on this matter.

(2) What are your views on the current state where inmates in our country are unable to vote due to being factually incarcerated?

A:

Because this question involves cases currently pending before courts, based on judicial ethics considerations, the nominee is unsuited to express opinions on this matter. (For relevant petitions, please refer to Constitutional Court Ruling No. 146 of 2023 and Ruling No. 7 of 2024). In addition, legislators of the current term have also proposed relevant amendment bills concerning absentee voting, which may have reference value.

• Equality and Non-Discrimination

14. Regarding a case where a public university expelled a student due to involvement in severe discrimination: If such discriminatory conduct has been identified by other competent authorities and "its study opportunity shall be restored," may the administrative court revoke the expulsion disposition made unlawfully by the public university, regardless of whether it has been finalized? If revocation is not permitted, how should the court's judgment protect the rights of the discriminated student?

A:

If the nominee understands the intent of this question correctly, please allow the nominee to first clarify administrative law and administrative litigation systems as follows: Judicial Yuan Interpretations No. 382, No. 563, and No. 684 have already elucidated that expulsion dispositions made by public universities against students fall within the scope of university autonomy, and students may file petitions for appeal and administrative litigation relief. Therefore, the situation mentioned in the inquiry where "other competent authorities" determine that study opportunities should be restored could only occur in situations where a student filed an appeal against the expulsion disposition, and the competent appeal authority deemed the appeal well-founded and revoked the original expulsion disposition; it should not lead to the situation mentioned in the inquiry as to whether the administrative court may revoke the disposition regardless of whether it is finalized. Furthermore, for administrative dispositions that have already been finalized, revocation lawsuits can no longer be filed; relief should be sought by filing lawsuits to confirm the illegality/nullity of the disposition.

As for how court judgments should protect the rights of discriminated students, the nominee believes it should depend on the discriminatory circumstances of the individual case. Regardless of whether the public university issued the disposition by applying general laws, regulations, or administrative rules containing discrimination, or issued a discriminatory disposition on a case-by-case basis, the court can review whether such laws, regulations, or administrative rules violate the constitutional protection of the right to equality and thus ought not to be applied, or review the constitutionality and legality of the disposition. If the disposition was made pursuant to discriminatory laws, a petition should be filed with the Constitutional Court for a review of legal norms or judicial judgments for unconstitutionality. Because the facts of the individual case are unclear here, and it is also difficult to ascertain the legal nature of the decision by other competent authorities, it is relatively difficult for the nominee to provide a concrete response, and your understanding is appreciated.

15. To formulate the "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 consisting of 67 articles. However, regarding the "Draft Anti-Discrimination Act" announced by the Executive Yuan in May 2024, the contents differ considerably from the draft of the research project. What are your opinions on the enactment of the "Anti-Discrimination Act"? Beyond clarifying the right to claim compensation for discriminatory acts, what else should the "Anti-Discrimination Act" contain?

A:

From an academic standpoint, the nominee has always supported the enactment of an Anti-Discrimination Act. However, aside from enumerating definitions of discrimination and conferring corresponding claims upon individuals, the focus of the Anti-Discrimination Act ought to be on how to "enforce" it. The dilemma of anti-discrimination laws often arises in how to determine whether discrimination exists in individual cases, because the existence of discrimination usually requires a larger number of cases as the basis for verification and comparison. If the state lacks relevant systems to assist individual victims of discrimination, then even if the Draft Anti-Discrimination Act currently announced by the Executive Yuan intends to enable individuals to obtain civil compensation rights, individuals will probably find it quite difficult to initiate relevant lawsuits to safeguard their own rights. In addition, the draft also lacks a clear design for the allocation of the burden of proof; under the limitations of investigative means in civil courts, it will likely make it difficult for courts to adjudicate and evaluate whether a discriminated person's lawsuit is well-founded. Especially in cases of indirect discrimination, whether indirect discrimination is established in individual cases is bound to generate extreme controversy—particularly in the category of indirect discrimination concerning "publicly providing goods, facilities, or services in public transactions." Due to a lack of comparative legal examples, it is even more likely to present law enforcement and court adjudication dilemmas. The draft also treats active support obligations and passive anti-discrimination side by side, which may likewise engender subsequent legal application disputes and internal conflicts among legal norms. Finally, the Draft Anti-Discrimination Act currently proposed by the Executive Yuan delegates the determination of certain discrimination to respective target business competent authorities, while lacking related matching administrative measures for determining discrimination. Therefore, from an academic perspective, the nominee tends to maintain a relatively conservative attitude toward the actual effects that the current draft can achieve.