2018.12.18
Jenny Chen
The Legislative Yuan renamed the Constitutional Interpretation Procedure Law as the Constitutional Procedure Law (hereinafter, the “Law”) and amended its provisions on December 18, 2018. The President promulgated the amendments via the President-Hua-Zong-One-Yi-10800001301 Decree of January 4, 2019. The Law will go into effect three years after its promulgation. These amendments are highlighted below:
First, constitutional litigation will be completely judicialized, adjudication-oriented and court-oriented to reflect the nature of the judicial power.
Articles 1, 30, 37 and 38 of the Law as amended stipulate that the Grand Justices of the Judicial Yuan will set up the Constitutional Court to hear cases involving the constitutional review of laws and regulations, constitutional review of court decisions, disputes between agencies, impeachment of the President and the Vice President, unconstitutional dissolution of political parties, safeguards of local autonomy, and uniform interpretation of laws and directives. The greatest change in these amendments is that the outcome of the review will be proclaimed in the format of an adjudication to reflect the nature of exercising the judicial power.
Second, an “adjudication-oriented constitutional review” system is introduced to safeguard fundamentalrights.
Before the amendments, a final court decision could not serve as a subject matter of the Grand Justices’ constitutional review, resulting in inadequate protection of the people’s rights. To extend the effect of the Grand Justices’ constitutional review to final adjudications of courts and provide comprehensive and flawless protection of the people’s fundamental rights, Article 59 of the Law as amended introduces the adjudication-oriented constitutional review system in Germany. This system allows the people who believe that a final unfavorable adjudication for which remedies available in all instances have been exhausted is unconstitutional to seek a decision rendered by the Constitutional Court to proclaim such adjudication unconstitutional so as to provide comprehensive protection of the people’s fundamental rights.
Third, the “amicus curiae” system is introduced to solicit opinions extensively.
Since the Grand Justices’ constitutional review does not only cover legal issues but also involve political, economic and social domains, the practices of the Federal Supreme Courts of the US were referenced to amend Article 20 of the Law by adding the “amicus curiae” system to expand the gathering of expertise or information for reference by the Constitutional Court in hearing cases to ensure more comprehensive decisions.
Fourth, an open and transparent constitutional review procedure is introduced.
Article 18 of the Law as amended provides that after the Constitutional Court decides to accept an application, the application and the response statementwill be disclosed in the website of the Constitutional Court not only to address the people’s right to know and the convenience of information acquisition but also to accommodate the amicus curiae system to solicit opinions extensively. In addition, Articles 32, 33 and 61 of the Law as amended provide that a decision on a constitutional lawsuit shall record the names of the grand justices participating in the decision and their opinions reflecting their approvals and disapprovals and indicate the name of the authoring grand justice. It is also required that reasons should be provided in an adjudication which does not accept an application, and that the names of the grand justices participating in the adjudication and their opinions reflecting their approvals and disapprovals shall be recorded so as to enhance the openness and transparency of decisions rendered by the constitutional court. Before the amendments, a constitutional interpretation by grand justices was rendered by way of meetings, and case files and materials were kept in confidence and not subject to review or disclosure to the public. Article 23 of the Law as amended provides for a case file review procedure and formally establishes an interpretation case file review system for the parties, agents-ad-litem, defenders or any third party consented by the parties or having any legal interest.
Fifth, the voting threshold for constitutional review cases is lowered to enhance the efficiency of review.
Before the amendments, a deliberation on the constitutionality of a law required an approval of at least two thirds of the participating grand justices. In practice, an interpretation often could not be rendered for failure to reach the high two-thirds threshold, and such requirement does not meet the general practice that a majority vote should be adopted for constitutional review cases under comparative law. Article 30 of the Law as amended reasonably lowers the voting threshold for constitutional review cases by stipulating that “except as otherwise stipulated under this Law, a decision shall be deliberated by at least two thirds of all incumbent grand justices and approved by the majority of all incumbent grand justices.” A decision on constitutionality may be rendered in this fashion to enhance review efficiency.
Sixth, the review of cases involving the impeachment of the President and the Vice President is specifically stipulated.
When the Amendments to the Constitution were promulgated on June 10, 2005, it was additionally stipulated that the Grand Justices of the Judicial Yuan shall constitute a constitutional court to review cases involving the impeachment of the president and the vice president. However, the Law was not amended accordingly, resulting in inadequacy of the legal regime. Chapter V is added to these amendments to specifically provide for relevant review procedures and includes the requirements that the Legislative Yuan may bring an impeachment case against the president or the vice president with the Constitutional Court to seek a decision that proclaims a successful impeachment in accordance with the Constitutional Amendments (Article 68), and that the progression of a case procedure shall not be affected by the departure of the impeached individuals from office, the dissolution of the Legislative Yuan or the expiration of the term of the legislators (Article 69). Chapter V also covers matters such as procedural requirements for the scheduling of oral arguments (Articles 71~74) and the deadline for cases involving the impeachment of the President and the Vice President (Article 76). As a result, the constitutional court can follow required procedures when hearing such cases.
Seventh, it is specifically stipulated that the Law as amended will go into effect three years after its promulgation.
To accommodate major reforms such as the judicialization, adjudication orientation and court orientation for cases heard by grand justices and to take into account the need to have sufficient time for preparation and necessary accommodating measures for the operation of the new system, Article 95 of the Law provides that this Law shall go into effect three years after its promulgation.