The Constitutional Court Procedure Act(hereinafter, the “Act”) came into effect on January 4, 2022, and constitutional disputes henceforth will be trialed and decided by the “Constitutional Court” pursuant to the procedure stipulated under this Act to establish a judicialized court-based constitutional review system. In addition, cases that were pending and not concluded before the effective date of this Act will be concluded by the decision of the Constitutional Court in accordance with the new system.
II. Highlights of change:
1. Judicialization, adjudication and court-based trial
The Constitutional Court, composed of the Justices of the Judicial Yuan, hears cases involving the constitutional review of the laws and regulations applied in court decisions and the constitutional review of court decisions, cases involving disputes between government agencies, cases of impeachment of the President and Vice President, cases involving the constitutional review of political parties, cases of protection of local self-governance, and cases of uniform interpretation of laws and orders, etc. The most obvious difference between the Constitutional Court and the Council of Grand Justices in the past is that the results of trials are announced via adjudication to reflect the nature of exercising judiciary power.
(Articles 1, 30, 37, and 38 of the Act)
2. Introduction of the system of “constitutional court decision review”
The German system of constitutional court decision review is introduced by this Act so that the effect of the constitutional review by the Grand Justices can be extended to a final court decision to comprehensively protect the basic rights of the citizens. A citizen may apply to the Constitutional Court for a decision that declares the unconstitutionality of an unfavorable final court decision in a case where the citizen believing the court decision is unconstitutional has exhausted his/her appellate remedies. However, the constitutional review of court decisions is just a special relief system, not the fourth instance trial.
3. Introduction of the “amicus curiae” system
Since the constitutional review by the Justices does not just deal with legal issues, but also involves political, economic, social, and other fields, this Act has added a new system of amicus curiae by considering the practical operation of the U.S. Federal Supreme Court for reference. People’s organizations or groups other than the parties may apply to become amicus curiae and appoint an attorney to provide professional opinions or information of reference value to the Constitutional Court for reference during its trial of cases, so that the decision can be more comprehensive.
4. Openness and transparency of the constitutional review procedure
(1) Petition briefs and answer briefs
If a case accepted by the Constitutional Court involves the maintenance of the objective legal order and are of constitutional value and public interest, this Act stipulates that after the Constitutional Court has accepted a case, the petition brief and the answer brief shall be made public on the Constitutional Court’s website, not only to consider the rights and interests of the public to know and the convenience of information access but also to accommodate the amicus curiae system to solicit opinions extensively. However, if a matter of personal data protection is involved, such information should be properly redacted.
(2) Court file review system
In the past, constitutional interpretation was conducted by the Justices through meetings, and the files and materials were kept confidential and not open to the public. In line with the comprehensive court-based system for the Justices’ hearing of cases, this Act establishes the system of reviewing court files in reference to the general litigation system so that the parties, attorneys, defenders, and interested third parties may request to review, transcribe, photocopy, or photograph the documents in the files.
(3) Disclosure of the concurrence or dissenting position of the Chief Justice and the Justices
This Act stipulates that the decision of a constitutional lawsuit shall contain the names of the Justices who participated in the decision and their opinions concurring or dissenting with the main text, and shall indicate the Chief Justice. The Act also stipulates that a dismissal ruling shall be accompanied by reasons and shall contain the names of the Justices who participated in the ruling and their opinions concurring or dissenting with the decision, so as to enhance the openness and transparency of the results of constitutional court rulings and decisions.
(Articles 32, 33, and 61 of the Act)
5. The lowered voting threshold for constitutional review cases
Prior to the implementation of the Act, the Council of Grand Justices set a high threshold of two-thirds of the number of Justices present and concurring in the constitutional review of a law. In practice, it was quite often that interpretation could not be rendered because this two-thirds threshold could not be met. This Act reasonably lowers the voting threshold for constitutional review cases by providing that a decision declaring constitutionality or unconstitutionality may be rendered with the concurrence of the majority of the total number of the incumbent Justices and over two-thirds of the incumbent Justices participating in the proceedings in order to improve efficiency.
III. Points to note for application cases after the effective date of the new Act:
1. Term of application
|Type of application||Term of application|
|It is believed that the “laws and regulations” applied in a final court decision are unconstitutional.||Six months from the date following the receipt of the decision.|
|It is believed that the final court decision “itself” is unconstitutional.||Six months from the date following the receipt of the decision.|
|Application for uniform constitutional interpretation of laws and regulations||Three months from the date following the receipt of the decision.|
|The legal opinion of the Grand Chamber was cited in a final court decision that was delivered prior to January 3, 2022 before the effective date of the Constitutional Court Procedure Act as amended.||Six months after January 4, 2022
(i.e., before July 4, 2022)
|The final decision was delivered before January 3, 2022, and it is believed that the laws and regulations applied in the decision are unconstitutional.||Six months after January 4, 2022
(i.e., before July 4, 2022)
(Articles 59, 84, and 92 of the Act)
2. Format standardization of briefs
After the effective date, the website of the Constitutional Court has stipulated the required formats of the briefs for all types of litigation and the matters that should be specified and posted sample documents to facilitate compliance.
3. Digitized services
In light of technological advances and the increasing popularity of related transmission devices, this Act provides that in addition to filing briefs in paper form, the people may also submit electronic briefs with the same effect as the paper ones when applying to the Constitutional Court for a ruling. The Judicial Yuan has completed the deployment of an electronic service platform for filing and transmitting litigation documents (including online complaints) by the parties.
(Article 14, Paragraph 5 of the Act and the Regulations Governing the Use of Technical Equipment to Transmit Constitutional Litigation Briefs)
4. Virtual hearing
To avoid delays in the trial process due to the absence of a person who is required to appear in the Constitutional Court for oral argument or preparatory proceedings as scheduled, and to facilitate the appearance of a person who is not available to appear in the Constitutional Court, it is specifically stipulated that the Constitutional Court may, when it deems appropriate, use the remote video technology equipment of the court having jurisdiction over the person required to appear. If a hearing at the Constitutional Court is practically impossible or inappropriate due to natural disasters, epidemics, transportation disruptions, or other force majeure incidents, it is specifically stipulated that the Constitutional Court may designate the Justices and the persons supposed to appear in court to participate in the trial in different appropriate places by using the above-mentioned equipment or equipment that mutually transmit sound such as communications telephone.
(Article 39, Paragraphs 1 and 2 of the Constitutional Court Review Rules)
5. Preliminary injunctions
To prevent the people’s constitutionally protected rights or public interests from irreparable damage when a constitutional review case is pending, a system of preliminary injunction is set up in the Constitutional Court Procedure Act, which is also the institutionalization of the criteria for preliminary injunctions for constitutional interpretation under Judicial Interpretation No. 599.
6. Mandatory representation for oral arguments
This Act does not stipulate mandatory representation by an attorney for constitutional review application. However, mandatory representation by an attorney for oral argument proceedings at the Constitutional Court is required in principle. Except in cases where the parties or their representatives or legal representatives have certain professional qualifications (i.e., they are qualified as judges, lawyers, or law teachers) or are the representatives of the competent authority under the law or regulation subject to the review or designated by the Constitutional Court, the parties are required to retain attorneys to serve as their advocates in order to improve the standard and efficiency of oral argument proceedings at the Constitutional Court and to protect the constitutional rights of the parties in the constitutional litigation.
The enactment and implementation of the Constitution Court Procedure Act will indeed help protect the constitutional rights and interests of the people and contribute to the openness and transparency of the review process, but the adequacy of the current supporting measures remain unclear until the new Act is implemented and the constitutional court practice develops. In fact, the systems of “constitutional review of court decisions” and “amicus curiae,” as well as mechanisms such as the electronic transmission of briefs and exhibits and remote court sessions, have been implemented in other countries for years. It is worth noting how the systems would work in practice after their introduction in our constitutional litigation procedure.
(The authors’ opinions do not represent the position of this law firm.)