ANALYSIS/Legislative bill places cloud of uncertainty over Constitutional Court

Taipei, Dec. 6 (CNA) Lawyers, scholars and former judges have raised concerns Taiwan's Constitutional Court could be paralyzed by an opposition proposal to set the minimum number of justices required to review cases at 10.

The Legislative Yuan is poised to vote on the changes to the Constitutional Court Procedure Act pending the outcome of interparty negotiations called by Legislative Speaker Han Kuo-yu (韓國瑜) of the main opposition Kuomintang (KMT).

Little to no consensus exists as to the amendments' immediate legal standing if passed, nor what powers the Constitutional Court -- now ostensibly understaffed -- would retain.

The bill, first tabled by KMT Legislator Weng Hsiao-ling (翁曉玲) at the end of September, seeks to set the quorum for presiding over a case at 10 justices, regardless of recusals or the number of justices currently sitting on the Constitutional Court.

Existing rules do not specify a minimum number of justices to hear a case but do require the presence of at least two-thirds of all sitting justices.

Additionally, under the proposed amendments, a ruling would also need the support of at least two-thirds of 15 justices, or 10 votes, instead of the current simple majority.

As a result, the amendments would effectively immobilize the current eight-member Constitutional Court until the Legislature confirms at least two new justices.

The Legislative Yuan has yet to confirm ruling Democratic Progressive Party (DPP) President Lai Ching-te's (賴清德) nominees to replace seven justices whose eight-year terms ended Oct. 31 due to opposition from lawmakers from the KMT and the Taiwan People's Party (TPP), who together hold a majority of seats.

The Legislature's confirmation hearings for justice appointments, including Judicial Yuan presidential nominee Chang Wen-chen (張文貞) and vice presidential nominee Yao Li-ming (姚立明), did not begin until Dec. 2.

This has left the Constitutional Court, normally staffed by a cohort of 15, with the lowest number of justices since the introduction of judicial interpretation in 1947.

It has also created an unprecedented situation where the Judicial Yuan, which oversees the Constitutional Court, is without a president and a vice president.

This predicament is set to last until at least Dec. 24, when lawmakers put the justice nominations to a vote on the legislative floor.

'Unable to operate'

At a Nov. 14 meeting in the Legislature, Constitutional Court Director-General Yang Hao-ching (楊皓清) said with the justice vacancies remaining unfilled, the passage of the proposed bill without appropriate guardrails would render the court "unable to operate."

He was alluding to measures -- currently absent from the proposed amendments -- that would ensure the number of justices on the Constitutional Court does not fall below 10 if confirmations are held up when sitting justices reach mandatory retirement.

Apart from the imminent risk facing the Constitutional Court, lawyer Jacob Lin (林俊宏) has said the bill, if adopted, would set the threshold for issuing constitutional rulings at an "unprecedentedly high level," making it "extremely difficult" for the court to rule on any cases.

Lin was one of more than 300 lawyers who took to the streets of Taipei on Nov. 16 to demand the withdrawal of the bill over fears it could cripple the Constitutional Court's operations.

Above all, the proposed revisions would hamper the public's access to rulings in cases where they believe their basic rights have been violated, Lin argued, adding that around 95 percent of over 800 rulings issued by the court to date had fallen within this category.

Tit-for-tat

DPP lawmakers have excoriated Weng's bill as "hasty and crude," and accused the KMT lawmaker of engaging in a tit-for-tat action driven by her aversion to recent Constitutional Court rulings.

In her defense, Weng maintains that raising the threshold for rulings would ensure a "more vigorous" deliberation process in the Constitutional Court.

However, she acknowledged that such a call for judicial reform stemmed from her dissatisfaction with rulings this year that further restricted the use of the death penalty in Taiwan and struck down the bulk of KMT-endorsed measures granting the Legislature broader investigative powers.

Describing the two rulings as "outrageous," Weng told Nov. 14's legislative meeting that "wrongful, unjust constitutional rulings are more dangerous than not issuing any rulings at all."

For Weng to get her bill passed by the 113-seat Legislature, she will need not only the backing of her KMT colleagues, who hold 52 votes but also that of the smaller TPP, which has eight votes.

The upstart party has collaborated with the KMT on most legislative bills and proposals, but TPP Legislator Huang Shan-shan (黃珊珊) has publicly opposed the bill.

The TPP's legislative caucus whip Huang Kuo-chang (黃國昌), meanwhile, said he agreed with setting a quorum and that the party was inclined to come up with its own version of the bill, without elaborating.

A brewing crisis

With the KMT's bill one step away from a vote, legal professionals and scholars remain divided on its potential impact.

Former justice Huang Hung-hsia (黃虹霞) told CNA that even if the bill was adopted and signed into law by the president, she believed the government or the general public could challenge it at the Constitutional Court.

Huang, who served as a justice from 2015 to 2023 upon the appointment of former President Ma Ying-jeou (馬英九) of the KMT, added that the situation would likely be "controversial" given that only eight justices would be involved in such a case.

Lin Jia-he (林佳和), an associate professor at the National Chengchi University's College of Law, suggested that the Constitutional Court declare the bill unconstitutional once it cleared the Legislature, calling such a move "an extreme exception" but one that would be necessary to avert "a major constitutional crisis."

"You can only imagine such a decision [by the court] would trigger a massive political storm," the law professor added.

The Judicial Yuan, meanwhile, has declined to discuss the matter, with a spokesperson responding to CNA's request for comment by saying only that the top judicial body would "actively mull over measures" if the bill was passed.