Statement | "Human Rights Protections Incomplete, Constitutional Court Still Paralyzed" – JRF Statement on the High Court's Resumed Adjudication of the "Flag Desecration Case"

Ever since the new Constitutional Court Procedure Act passed by the opposition alliance officially entered into force on January 25, 2025, the Constitutional Court has been paralyzed for 251 days, leaving numerous cases concerning human rights protections unadjudicated. Most bafflingly, the National Flag Insult Case, for which a judge of the Taiwan High Court petitioned for a constitutional interpretation back in 2017, quietly waited in the Constitutional Court for eight years—only to be met not with a new constitutional judgment, but rather with the Taiwan High Court proceeding to hear the case itself on October 1.

Today's situation fully highlights the constitutional crisis currently facing our nation: amidst the continued paralysis of the Constitutional Court and the incompleteness of the human rights relief mechanism, fundamental constitutional rights risk being reduced to "rights on paper." In response, we issue the following three calls to action:

1. Courts of all instances, including the Taiwan High Court, should adhere to Article 80 of the Constitution—which mandates "independent trials in accordance with the law"—and the principle that judges must prioritize upholding the Constitution, thereby firmly safeguarding freedom of speech and thought.

2. The volume of cases awaiting relief in the Constitutional Court is increasing rather than decreasing; the President and the legislature should swiftly fill the vacancies for Grand Justices to restore the normal operation of the Constitutional Court.

3. The Constitutional Court should promptly resolve the dilemma preventing deliberation—caused by the threshold under the new Constitutional Court Procedure Act—through legal principles such as "procedural autonomy."

I. Defending Constitutional Freedom of Speech is an Obligation of Courts at All Instances

The United States Supreme Court has never permitted the government to prohibit conduct related to the national flag in order to assert or promote the government's stance regarding it. Notably, in the 1989 case "Texas v. Johnson," the majority opinion held that freedom of speech protected by the Constitution does not privilege any single ideology; therefore, criminally punishing "expressive conduct consisting of the offensive desecration of the flag" constitutes "content-based regulation." Under strict scrutiny, the crime of flag desecration was declared unconstitutional by the U.S. Supreme Court.

Our nation's constitutional interpretation practice also places a high value on protecting the people's freedom of speech. Taking Judicial Yuan Interpretation No. 644 as an example, the Grand Justices held that the former Organization Act for Reference Purposes [Note: referring to the old Civil Associations Act]—which allowed the government to review political speech advocating "communism or the division of the territory" and to use it as grounds for denying establishment permits—was unconstitutional.

From the perspectives of comparative law and our nation's constitutional interpretation practice, this Foundation maintains that the "crime of insulting the national flag" should be unconstitutional. Accordingly, this Foundation calls upon the courts, based on their duty to prioritize upholding the Constitution, to protect the people's constitutional freedom of speech. This protection must not be compromised, especially at a time when the Constitutional Court is paralyzed. In fact, in the previous instance of this case, the three defendants were acquitted through an interpretative judgment. We expect that if the judges in this case believe the crime of insulting the national flag infringes upon freedom of speech protected by the Constitution, even though they lack the authority to declare a law unconstitutional, they should refuse to apply it; alternatively, they should respect the defendants' views and continue waiting for the Constitutional Court to adjudicate the constitutionality of the "crime of insulting the national flag." Conversely, proceeding directly with the trial of this case may render the prerequisite for filing a constitutional review unlawful (the requirement being a "stay of proceedings"), resulting in the dismissal of the petition, which does nothing to help the institutional protection of the people's freedom of speech.

II. Constitutional Court Relief Requires Queuing Up; the President and Legislature Should Jointly Foster the Resumption of Operations

The Constitution guarantees every citizen numerous fundamental human rights, but the reality is that we have only "one Constitutional Court," and judicial resources are extremely limited. Not every case can rapidly obtain a conclusion of constitutionality or unconstitutionality. Therefore, "legal relief" inevitably requires "queuing up." Combining PTS reports from last year with this Foundation's statistics this year, the number of accepted cases awaiting judgment in the Constitutional Court has reached 455.

However, under limited constitutional litigation resources, the number of Grand Justices currently fails to reach the 10 members required for deliberation under the current Constitutional Court Procedure Act. This means the queue waiting for relief will only grow increasingly longer and cannot be cleared over time. In response, we call upon the President and the Legislative Yuan to uphold their duty of loyalty to the Constitution and the maintenance of constitutional order, and to swiftly exercise personnel appointment powers to restore the operation of the Constitutional Court.

III. Reiterate the Call for the Constitutional Court to Promptly Adjudicate the Constitutionality Dispute of the New Constitutional Court Procedure Act

In our country's liberal democratic constitutional order, the protection of fundamental rights and the separation of powers with checks and balances are indispensable elements. Yet what constitutional operations present today is that fundamental rights cannot be asserted through constitutional litigation channels, and the constitutional powers exercised by the Five Yuans cannot be checked and balanced through constitutional interpretations. Facing this predicament, four of the current eight Grand Justices have already stated in opinions within two non-acceptance dismissal rulings¹ that the legislature, in exercising its powers, must not obstruct or even paralyze the operations of other constitutional organs.

Before we can expect when the President and the legislature will exercise their personnel appointment powers to fill the number of personnel required for the minimum deliberation threshold, and in order to resolve the current constitutional stalemate, we call upon the Constitutional Court to take up its responsibilities with courage and promptly restore the normal operation of our nation's constitutional order through constitutional judgments. This will prevent people's fundamental constitutional rights from once again being reduced to "rights on paper," or having future cases returned to criminal, civil, or other courts for continued trial.

Freedom of speech is a human rights value that Taiwan has continuously pursued throughout its transition from martial law to democracy and freedom. Such a value must be maintained through a relief system, otherwise it will be reduced to a "right on paper." Therefore, as the Taiwan High Court Criminal Division resumes trial on the flag desecration case today, we call upon the Constitutional Court to step forward bravely to resolve the stalemate caused by the new thresholds of the Constitutional Court Procedure Act, ensuring that people's fundamental rights are not affected by the paralysis of the Constitutional Court. At the same time, we also call upon courts of all instances nationwide to pay attention to the protection of people's fundamental rights during trials.

^{1 See the concurring opinion authored by Grand Justice Chen Chung-wu, joined by Grand Justices Hsieh Ming-yang and Yu Po-hsiang, in Constitutional Court Ruling No. 73 [2025]; and the dissenting opinion authored by Grand Justice Lu Tai-Lang joined by Grand Justices Hsieh Ming-yang, Chen Chung-wu, and Yu Po-hsiang, in Constitutional Court Ruling No. 75 [2025].}

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Press Contact

Elvin Lu, Attorney-at-Law, Director of the Legal Policy Department, Judicial Reform Foundation
Tel: 02-2523-1178#37
Email: elvin@jrf.org.tw