FEATURE/Constitutional Court deadlock: A looming crisis in Taiwan

By Teng Pei-ju, CNA staff reporter

Taiwan's Constitutional Court has been largely brought to a standstill since Jan. 25, when new measures passed by the Legislative Yuan and signed into law by President Lai Ching-te (賴清德) requiring a minimum of 10 justices to hear and rule on a case entered into force.

That essentially immobilized the 15-seat court, which has only eight members left after seven completed their terms at the end of October 2024, and nominations to replace them were blocked by opposition lawmakers.

Scholars see the court as an important check on the powers of the government's executive and legislative branches and as a bulwark against violations of basic individual rights, and fear that its immobilization is pushing Taiwan toward a constitutional crisis.

There is no precise definition of a constitutional crisis, but one indicator is when key government bodies are unable to perform their core functions effectively for an extended period of time, according to Su Tzu-chiao (蘇子喬), a political science professor at Soochow University.

If the Constitutional Court remained shut down for more than six months or even a year, "it would be a clear sign of a constitutional crisis to me," Su told CNA in a recent interview.

Unprecedented

The judicial impasse has taken the biggest toll on average citizens, said Lin Chien-chih (林建志), a research professor of law at Academia Sinica, noting that the vast majority of petitions handled by the court come from individuals who believe their rights have been breached.

The Constitutional Court is an indispensable part of a democratic society governed by the rule of law, even though most people may not perceive the impact of its dysfunction until they need its intervention, he said.

The official data corroborates Lin's observations, showing that of the 6,867 petitions received by the court between 2022 and 2024, 6,805 petitions, or approximately 99 percent of the total, were submitted by citizens.

Scholars are divided, however, on how to end the Constitutional Court conundrum, an unprecedented situation since Taiwan's democratization in the 1990s.

Some suggest that the judicial issue should be resolved through political means while others have called on the court to act in its own defense.

Political negotiations

Su urged the Democratic Progressive Party (DPP) government to negotiate with the opposition in appointing new justices to the court, contending that Lai, who concurrently serves as DPP chairman, has "a key role" in resolving the impasse.

The president should select justices "acceptable" to lawmakers from the opposition Kuomintang (KMT) and the Taiwan People's Party (TPP), who together hold a majority in the 113-seat Legislature, for their support is essential for the nominations to be confirmed, Su said.

Lai previously picked seven candidates to replace justices whose eight-year terms ended on Oct. 31, 2024, but all of them were rejected by the Legislature later that year.

In particular, 52 KMT lawmakers and two independents ideologically aligned with the party voted against all the nominees they perceived as partisan and supportive of the abolition of the death penalty in Taiwan.

The eight TPP lawmakers opposed six of the seven nominees, and even the DPP, with 51 votes, rejected one.

Speaking in a similar vein, Liu Jia-wei (劉嘉薇), a political science professor at National Taipei University, said prior to Lai's new nominations that including the KMT and the TPP in the new round of the justice selection process could be the first step toward easing internal political tensions.

Such a move would be "an overture" from the DPP government and help foster a sense of goodwill between the two sides as they currently "lack trust," she told CNA.

This appears not to have occurred, however, as KMT and TPP lawmakers were quick to criticize the Presidential Office's new list of seven justice nominees unveiled on March 21 after CNA spoke with Su and Liu.

Among those nominated were Tsai Chiu-ming (蔡秋明), a head prosecutor of the Taiwan High Prosecutors Office, and Su Su-e (蘇素娥), a Supreme Court judge, as president and vice president of the Judicial Yuan, respectively.

Both the KMT and the TPP questioned Tsai's ability to oversee the Judicial Yuan, given that his experience has been limited to prosecutorial affairs.

Huang Kuo-chang (黃國昌), the TPP's chairman and legislative caucus whip, even went so far as to suggest that Tsai's nomination reflected the DPP government's desire to use the prosecutorial and investigative powers of the justice system to push its agenda.

Stalemate

The apparent deadlock over the new nominees is just one of many issues that the DPP government and the opposition-led Legislature have been unable to agree upon over the past 10 months.

Even the amendments to the Constitutional Court Procedure Act, which included establishing the 10-member quorum and mandating that any ruling declaring a legal provision unconstitutional be backed by at least nine justices, were the product of discord between the two sides.

The revisions were introduced by KMT lawmakers partly in retaliation for the court's decision to strike down most of the opposition-endorsed measures aimed at granting the Legislature broader investigative powers, in a legal case initially brought by the DPP.

Su said that "deadlock is common" in countries where the ruling party does not hold a majority in the national legislative body, citing U.S. government shutdowns as an example.

"It all comes down to those in key positions seeking agreement," he said, referring to top government officials and opposition party leaders.

Judicial intervention

The Judicial Reform Foundation (JRF) has argued, however, that the Constitutional Court needs to take matters into its own hands.

Describing the current situation as "a ticking time bomb" for Taiwan's democracy and the rule of law, it said on March 6 that the appointment and confirmation of new justices were vulnerable to political maneuvering and that the process could leave the Constitutional Court inactive for another two to three months.

Consequently, the JRF called on the Constitutional Court to issue an injunction to halt the enforcement of the amendments to the Constitutional Court Procedure Act, even without 10 justices present.

It argued that the Constitutional Court "is entitled to exercise self-defense" as it is "faced with [the Legislature's] unilateral actions to encroach on judicial authority."

"I would argue that the court ultimately retains the discretion to determine which rules apply when it adjudicates," said Academia Sinica's Lin, adding that the court ought to declare the amendments unconstitutional and thereby revoke them.

Justices rule on the constitutionality of legal provisions based on the Constitution and are not necessarily bound by legislation passed by the Legislature during its deliberation process, according to Lin.

He defended this position by citing the court's Interpretation No. 371 issued in 1995, which states that "the Constitution is superior to statutes in terms of validity" and that "judges are obliged to apply the Constitution in the first place."

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