Constitutional Court Should Not Rule During Vacancy
China Times Editorial, January 06, 2025
The Executive Yuan has submitted a reconsideration request to the Legislative Yuan regarding amendments to the Constitutional Court Procedure Act. During this transitional period when the Constitutional Court's operations are in limbo, two politically sensitive cases have emerged and may be resolved through constitutional interpretation.
The first case involves Hsinchu Mayor Kao Hung-an and allegations surrounding legislative assistant fees. The second pertains to mainland Chinese spouse former Nantou County Councilor Shih Hsueh-Yen, who was dismissed by the Ministry of the Interior (MOI). Notably, the Taiwan High Court Collegiate Panel has referred Kao’s case for constitutional interpretation. However, under the current system of eight grand justices—pending implementation of the amended law—it remains uncertain whether the case will be accepted.
Kao has been accused of fraudulently claiming NT$116,000 (about US$3,500) in legislative assistant fees, a case that has attracted significant attention since the investigation began. The Taipei District Prosecutors’ Office indicted her on corruption charges, and the first trial resulted in a heavy sentence of seven years and four months, along with her suspension from office. However, the High Court Collegiate Panel noted that over the years, there have been more than 200 court rulings involving issues related to public assistant funding and overtime pay for local councilors. Among these cases, Kao is the first legislator to be convicted.
The panel argued that the provisions of the Organic Law of the Legislative Yuan on hiring assistants conflict with Article 18 of the Constitution, which guarantees institutional protection for public officials. This conflict, the panel stated, undermines the stability of elected officials’ positions and the democratic constitutional order. As a result, the panel suspended proceedings and filed a request for constitutional interpretation.
High Court judges rarely filed constitutional interpretation requests in the past due to uncertainties in legal application. However, Kao, one of only two sitting mayors from the Taiwan People’s Party (TPP), is at the center of a politically sensitive case. The collegiate panel drafted a lengthy statement to address concerns over inadequate legal protections that could potentially lead to unjust convictions, a commendable demonstration of judicial courage.
Nevertheless, the ruling Democratic Progressive Party (DPP) alleges that the Kuomintang (KMT) and TPP alliance attempts to paralyze the Constitutional Court, potentially leaving Kao’s case in indefinite suspension. This could pave the way for her to run again in the 2026 Hsinchu mayoral election. Legal experts worry that as the DPP administration blocks the implementation of the amended Constitutional Court Procedure Act, the current eight grand justices might reject the constitutional interpretation request under existing law, effectively sending the case back to the High Court. If this happens, then the High Court will be forced to resume proceedings, and the panel will have to reconsider how to rule carefully.
The concerns raised by legal experts are not unfounded. Since the resignation of seven grand justices in late October last year, the remaining eight grand justices, divided into three panels, have issued non-admissibility rulings on over 100 constitutional interpretation requests, the majority of which were filed by individuals.
Adding to the controversy, the DPP caucus of the Legislative Yuan recently signaled its intent to preemptively request constitutional interpretations and interim measures before the amended Constitutional Court Procedure Act takes effect, following the president's promulgation and before the Executive Yuan’s reconsideration process concludes. This has fueled speculation that a consensus may have already been reached with the grand justices to freeze the implementation of the amended law during this transitional period.
In other words, the DPP appears to be replicating its previous strategy of blocking the legislative reform bill passed by KMT and TPP lawmakers. Even if the KMT-TPP camp continues to boycott judicial appointments, it cannot alter the pro-DPP composition of the Constitutional Court. This dynamic suggests that future constitutional interpretations could become a default tool for countering opposition-led legislative reforms.
If the grand justices are reduced to instruments of constitutional sabotage and political maneuvering, it would mark a tragic decline for democratic governance and the rule of law.
Another politically sensitive case involves the MOI’s decision to revoke the public office of Shih, a former Nantou County councilor and mainland Chinese spouse, citing violations of the Nationality Act. Shih lost her bid for re-election in the 2022 local elections, making the MOI’s post-election action appear highly political.
This is further underscored by the MOI’s recent targeting of five current grassroots village chiefs alleged to hold mainland Chinese citizenship. The MOI sent letters to local district offices, instructing them to process dismissals under the Nationality Act and the Household Registration Act. Citing the Constitution and a May 2023 directive from the Executive Yuan, the MOI emphasized that prior interpretations equating mainland Chinese citizens to nationals or citizens of Taiwan are no longer applicable or valid.
In fact, the MOI’s narrative can be easily debunked by applying the fundamental principle of legal hierarchy. First, special laws take precedence over general laws. The Act Governing Relations Between the People of the Taiwan Area and the Mainland Area should be regarded as a special law in relation to the Nationality Act and other legislation. According to Article 2, Paragraph 2 of the Cross-Strait Act, the Mainland Area is part of the territory of the Republic of China, outside the Taiwan Area. How, then, could it be considered a separate country?
Moreover, given the divided governance across the Taiwan Strait, the concept of "a single territorial domain" encompassing "multiple nationalities" invalidates the use of nationality to determine the scope of citizens' rights and obligations. Under such circumstances, how could the Nationality Act be applicable?
Furthermore, the MOI argues that once mainland Chinese individuals acquire Taiwanese status, they become R.O.C. nationals and must comply with the Nationality Act, including relinquishing any foreign nationality after taking public office. However, the reality that the two sides of the Taiwan Strait are separately governed makes it politically impossible for the mainland to acknowledge Taiwan’s process for renouncing mainland Chinese nationality.
Thus, the MOI’s reliance on the lower-ranked Nationality Act and administrative directives amounts to invalid administrative actions. Affected individuals can seek relief through administrative litigation and constitutional interpretation to challenge such decisions.
However, given the DPP administration's current strategies and political climate, this controversial case will likely be used to push toward de jure Taiwanese independence through a constitutional court interpretation. This could nullify the Cross-Strait Act, subtly advancing the "two-state theory" and undermining the existing peace and stability in the Taiwan Strait. To prepare for the future, both the Kao and Shih cases have the potential to impact political developments significantly. It is urged that the current eight grand justices delay their rulings until the new law comes into effect to avoid creating historical regrets.
President Lai should also take into account the current political turbulence and public concerns by promulgating the new law within the statutory period and expediting the nomination of qualified new grand justices. These actions would help maintain the constitutional operations essential to a nation governed by the rule of law.
From: https://www.chinatimes.com/opinion/20250106004396-262101?chdtv