July 2023
Pei-Ching Ji and Tina Lee
The constitutional litigation system came into effect on January 4, 2022. However, since the existing provisions of the Constitutional Court Procedure Act regarding the requirements for applying for constitutional review, the effects of laws and regulations found unconstitutional, and the remedy system are not sufficiently clear, the law as amended was promulgated via a presidential decree on June 21, 2023 (the effective date is to be determined by the Judicial Yuan, and the law as amended has not been implemented as of the time of this article). The purpose of these Amendments is to enhance the constitutional litigation system to accommodate the practical operations of the Constitutional Court. The Amendments are highlighted below:
I. The provisions on the retroactively invalidating effects of laws and regulations declared unconstitutional by the Constitutional Court were added (Article 53, Paragraphs 1 and 3).
While Article 52 of the current law provides that if certain laws and regulations are declared unconstitutional by the Constitutional Court’s decision, they may be declared “immediately invalid,” “retroactively invalid,” or “invalid beyond a set period. However, the corresponding effects for “retroactive invalidity” were not specifically stipulated. The Amendments clearly stipulate that if the Constitutional Court declares, by way of a decision, that certain laws or regulations are retroactively invalid, the laws or regulations that have already lost their validity due to the Court’s decision should, in principle, not be further applied to pending cases that had not been concluded before the decision was made. Instead, such cases should be adjudicated based on the gist of the Constitutional Court’s decision (Article 53, Paragraph 1). For final court decisions rendered based on retroactively invalid laws or regulations, such decisions may be remedied pursuant to the statutory procedure or the gist of the Constitutional Court’s decision; and in the case of a final criminal decision, the Prosecutor General may file an extraordinary appeal on such a basis (Article 53, Paragraph 3).
II. The provisions on the immediate invalidating effects of laws or regulations declared unconstitutional by the Constitutional Court were adjusted (Article 53, Paragraph 2).
Under Article 53, Paragraph 2 of the current law, final decisions handed down based on laws or regulations declared “immediately invalid” by the Constitutional Court in criminal cases may be subject to extraordinary appeals by the Prosecutor General ex officio or upon the request of the defendant. However, final decisions other than criminal ones that are rendered within the scope of unconstitutionality shall no longer be enforced.
The Amendments take into account the fact that declaring laws or regulations “immediately invalid” aims to maintain legal stability. Therefore, Article 53, Paragraph 2 specifically provides that the effects (including the enforcement power of a final decision) of a final decision made based on laws or regulations declared “immediately invalid” by the Constitutional Court are generally not affected before the Constitutional Court’s decision is rendered. However, if the law provides otherwise, such a legal provision shall govern so as to allow the law to make different provisions on final decisions rendered pursuant to laws or regulations declared immediately invalid, based on the different regulatory requirements for different genre of scenarios.
III. The requirements for the people to apply for constitutional review of laws or regulations and constitutional judicial review are specifically stipulated (Article 59).
Under Article 59, Paragraph 1 of the current law, people who have exhausted all remedies available in all instances in accordance with the statutory procedures and who believe that the laws or regulations applied in unfavorable final decisions violate the Constitution may apply to the Constitutional Court for a decision declaring unconstitutionality. There have been disputes over whether unfavorable final decisions can be an object of constitutional review. The Amendments broaden the types of cases eligible for constitutional judicial review, explicitly stipulating that, in addition to the legal provisions applied to final decisions unfavorable to the people, such unfavorable final decisions are also included as an object of constitutional review. Furthermore, it is clearly stipulated that the people’s application to the Constitutional Court for constitutional review should be preconditioned by the unlawful violation of their rights safeguarded by the Constitution. Therefore, when the people apply for constitutional review, they are required to specifically state how the laws or regulations applied in the unfavorable final decisions are unconstitutional or how the opinion in the decisions on the interpretation of the laws or regulations are unconstitutional, even though the laws or regulations applied in the decisions are not unconstitutional, in applying to the Constitutional Court for a decision declaring the unconstitutionality of the decision.
Additionally, the provision on the time limit for constitutional review application under Article 59, Paragraph 2 of the current law is merely summarized as “a fixed period of six months after the unfavorable final decision is served.” To avoid disputes and for the sake of clarity, the Amendments modify the wording as “a fixed period of six months after the day when the final decision for which the remedies available in all instances have been exhausted is served.”
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