Q&A/Oversight law row heads to Constitutional Court

By Teng Pei-ju, CNA staff reporter

On Aug 6, the Constitutional Court will hear oral arguments on executive oversight amendments passed by opposition Kuomintang (KMT) and Taiwan People's Party (TPP) lawmakers and opposed by the ruling Democratic Progressive Party (DPP).

After the amendments became law on June 26, separate requests for judicial ruling were filed by President Lai Ching-te (賴清德) as well as the DPP-controlled Executive Yuan, the Control Yuan and the DPP's legislative caucus.

Before ruling on the amendments' constitutionality, the court will consider whether to approve an injunction blocking their enforcement. Attorneys and legal scholars representing the DPP-affiliated petitioners and surrogates selected by the KMT and TPP caucuses will present competing arguments at a preparatory hearing on the matter on Wednesday.

Q1: What will be the main disputes in the Constitutional Court's review of the case?

The court is tasked with determining whether the deliberation that led up to the amendments' passage contained "palpable" and "sufficient" defects, as defined by the 1994 ruling on the legislative process of the Organic Act of the National Security Council (Interpretation No.342).

The Constitutional Court will also rule on whether the updated laws approved by the Legislature on May 28 contravene the Constitution of the Republic of China (Taiwan's official name).

The revisions give the Legislature new investigative powers, including the power to hold hearings, with public officials subject to fines and jail time if they refuse to attend hearings or provide information, or if they present false information.

The amendments also include provisions requiring the president to deliver an annual state of the nation address at the Legislature and then field questions from the floor.

Q2: Why have different agencies petitioned the Constitutional Court?

In a rarity, the three top government agencies, all headed by DPP officials, have joined the party's legislative caucus in seeking a judicial ruling.

Elvin Lu (呂政諺), head of the Law and Policy Department of the Judicial Reform Foundation (JRF), said it was mainly because the four parties were affected by different provisions in the amendments, and they hence petitioned the court separately based on their respective needs.

He noted that the Control Yuan, for example, would contend the measures granting the Legislative Yuan extra powers would usurp its constitutionally bestowed investigative powers.

Su Tzu-chiao (蘇子喬), a political science professor at Taipei-based Soochow University, observed that the overlapping legal filings, which he described as "a barrage of arrows," reflected the DPP's intent to bolster its arguments that there were "serious violations of the Constitution."

Q3: Is it constitutional for the Cabinet to take legal action after the Legislature voted on June 21 to uphold the amendments sent for reconsideration?

Some, including KMT Chairman Eric Chu (朱立倫), have questioned the Cabinet's decision, arguing that Premier Cho Jung-tai (卓榮泰) "shall immediately accept" the amendments following the June 21 vote, as per the Additional Articles of the Constitution of the Republic of China.

But Cabinet spokesman Chen Shih-kai (陳世凱) told a press briefing on June 27 that requesting the Legislature's reconsideration of the bills and seeking a constitutional ruling on the amendments were "two different constitutional procedures."

The Cabinet had attempted to stop the amendments' implementation by asking the Legislature to vote on them once again, but the opposition party lawmakers, who together hold a majority of seats, voted down the request on June 21.

As a result, Lai signed the bills into law on June 24.

Lu, from the nongovernmental JRF, holds the same view as the Cabinet spokesman, noting that the executive body had petitioned with Article 47 of the Constitutional Court Procedure Act serving as its legal basis.

However, such a move by the Cabinet is unprecedented.

The Constitutional Court has only intervened twice in the country's history to resolve disputes between the Cabinet and the Legislature over laws passed by the latter, following lawmakers' rejection of the Cabinet's request for reconsideration of those laws.

These two instances were brought about by the passage of the Referendum Act in 2003 and that of a special act to form a task force to investigate the assassination attempt on former President Chen Shui-bian (陳水扁) of the DPP on March 19, 2004.

In both cases, it was the DPP legislative caucus that moved forward to seek a ruling on the constitutionality of the laws passed by a hung Legislature.

Q4: How long will the Constitutional Court take to reach a ruling and will it be final?

The court should make a judgment within three months after the conclusion of oral arguments, but this deadline can be pushed back by two months if necessary, according to the Constitutional Court Procedure Act.

For the amendments to be annulled, the case must be reviewed and approved in a majority decision by at least two-thirds of sitting justices.

Lu drew on past cases as saying that justices might expedite the review of the current disputes, given their "highly contentious" nature.

In the case of the Legislature's initiative to probe the assassination attempt on former President Chen, a ruling (Interpretation No.585) was handed down three months after the DPP legislative caucus filed its petition, Lu said.

He added that in another case, which concerned mandatory fingerprinting for issuing ID cards, an injunction was granted 10 days after the court received the DPP caucus' application, with a ruling (Interpretation No.603) rendered approximately four months later.

Speaking in the same vein, Su estimated justices would rule on the oversight laws case in about three months.

The professor noted that the 2000 case about ceasing the construction of the Fourth Nuclear Power Plant took the court less than three months to reach a judgment (Interpretation No.520).

Moreover, Lu said justices were more likely than not to strive to resolve the current disputes before Oct. 31, when seven of them will step down after serving for eight years, to "ensure the stability of the constitutional system."

Otherwise, the case is likely to drag on in the event the opposition-dominated Legislature refuses to confirm seven new justices nominated by President Lai, Lu said.

If the DPP is determined to reject the amendments, it can still mobilize the public to petition for national referendums -- regardless of the Constitutional Court's decision, Su noted.

Q5: Who will be hearing the case and what are their backgrounds?

Barring any recusals, the 15 incumbent justices, all of whom were appointed by former President Tsai Ing-wen (蔡英文) of the DPP, will preside over the case.

The Constitutional Court on Tuesday rejected KMT Legislator Weng Hsiao-ling's (翁曉玲) requests that justices Hsu Tzong-Li (許宗力), who is also president of the Judicial Yuan, and Hsu Chih-hsiung (許志雄) recuse themselves from the case.

Weng pointed to Hsu Tzong-Li's involvement in a 2004 case on the scope of legislative authority (Interpretation No.585), arguing that he had opposed granting the Legislature investigative powers.

She also argued that Hsu Chih-hsiung had previously held senior positions in the DPP government, including serving as minister without portfolio under former President Chen's administration.

However, the court said in its decision, which was made without the participation of Hsu Tzong-Li and Hsu Chih-hsiung, that the KMT legislator did not provide sufficient evidence to establish "reasonable grounds for believing" that the two justices would be unable to perform their duties impartially.

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