Op-Ed | When Will the Constitutional Court See the Light?

Since the new adjudication threshold under the Constitutional Court Procedure Act took effect on December 20 last year, the Constitutional Court has not deliberated on any accepted cases for over 200 days. These include numerous human rights cases concerning the "statute of limitations for the prosecution of child sexual assault victims" and the "ban on publishing polls prior to elections." Although the Constitutional Court has accepted a case questioning whether the new threshold is unconstitutional (Case No. 1, 114th Constitutional Legislative Year), it has yet to hold a hearing.

It is worth noting that 4 of the 8 current Grand Justices have already stated in their opinions on dismissal rulings in other cases that the legislature, in exercising its powers, must not obstruct or paralyze the operations of other constitutional organs. In this regard, the author believes that the Constitutional Court should bravely clarify whether the current threshold is unconstitutional, allowing cases involving human rights protections to receive relief from the Constitutional Court as soon as possible.

To Defend Constitutional Order, the Constitutional Court Should Bravely Resolve the Impasse

First, apart from the requirement that attendance must meet two-thirds of all members, the new adjudication threshold is actually floating depending on the number of incumbent members. In extreme cases, if there are only 10 Grand Justices, all must attend and 9 must agree for the Constitutional Court to declare a law or judgment unconstitutional. This adjudication threshold is exceptionally harsh. However, since the Constitutional Court Procedure Act is still a law, pursuant to the intent of Article 171 of the Constitution, it must not contradict the Constitution, and Grand Justices are fully empowered to review the constitutionality of the provisions of the Constitutional Court Procedure Act. Furthermore, drawing upon the "procedural autonomy" articulated in Judicial Yuan Interpretations No. 371 and No. 585, even if the Grand Justices do not declare the Constitutional Court Procedure Act unconstitutional, they could reference Decision "2024헌사1250" rendered by the Constitutional Court of Korea last year. They could freeze the provisions of the Constitutional Court Procedure Act concerning the required number of concurring votes on the grounds that the people's right to judicial relief under the Constitution has been infringed, and adjudicate cases using the former majority-consent threshold.

Second, from the perspective of the separation of powers, the "democratic legitimacy" of the legislative power rooted in ballots is not everything in a democratic constitutional state. Viewed from Article 1 of the Constitution, there is also so-called "republicanism" as an important principle to reconcile majoritarianism. Moreover, to prevent legislative overreach and hegemony, constitutional jurisprudence also recognizes that other constitutional organs with checks and balances possess "functional and institutional democratic legitimacy." Although not directly derived from public opinion, this is nonetheless an element of legitimacy recognized by the Constitution, serving precisely as a manifestation of such reconciliation. Accordingly, Interpretation No. 499 held that the legislative power of a representative body has its limits and cannot subvert the democratic system of checks and balances through its own "democratic legitimacy."

Looking back today, the Constitutional Court Procedure Act passed by the Legislative Yuan has unilaterally halted the operations of the Constitutional Court. In addition to undermining the judicial power's function of checking the legislative and executive powers, this situation also impairs its function of protecting the people's fundamental rights.

When the legislative power paralyzes the Constitutional Court and treats "public opinion" as the sole supreme value, the damage inflicted on the democratic system becomes even more severe, making it precisely the object against which voters must exercise strict vigilance.

Therefore, to defend the smooth operation of constitutional order, the Constitutional Court should bravely resolve the current impasse and make more proactive decisions to clear the clouds and see the light.

*The full text was published on October 7, 2025 on ETtoday