Grand Justices Behave Unlike Trial Judges, Who Are the Guardians of the Constitution?

 Grand Justices Behave Unlike Trial Judges, Who Are the Guardians of the Constitution?

United Daily News Editorial (Taipei, Taiwan)

June 22, 2018

 Translation of an Excerpt

The Ill-gotten Party Assets Settlement Commission, based on the Statute Governing the Handling of Ill-gotten Properties by Political Parties and Their Affiliate Organizations, issued various administrative dispositions vis-à-vis the KMT’s party assets, conquering town after town as if entering a no-man’s land. Until very recently, it encountered a certain challenge. The Taipei High Administrative Court believes there are misgivings that the Statute may be unconstitutional, hence, it petitioned to the Council of Grand Justices for a judicial review over the case. At the same time, pending the outcome of the judicial review, the trial over the case was ordered to be suspended. However, the Commission, apparently unaccustomed to “being suspended,” issued a press release criticizing it as an “opinion of a judge in a specific case,” saying in the current stage, the effect of its dispositions were not to be affected. Translated into the vernacular, it is "this yamen doesn’t care about court rulings," even accusing the judge of not providing the text petitioning for judicial review. For this, the Taipei High Administrative Court had to cite evidence refuting the incorrect version of the Commission’s statement.

This case elicited the attention of the legal circles, who believed that it was a matter of course that the dispute over the constitutionality should be first settled before allowing the litigation to proceed, saying this was "general knowledge of law." Current events commentators also lamented that Taiwan was facing a crisis of the “Constitution collapsing before our eyes,” but the Grand Justices of the Judicial Yuan, however, remained oblivious. Indeed, the misgivings that the Statute could be unconstitutional did not start with the questioning of the Taipei High Administrative Court; over a year ago, the Control Yuan had requested a judicial review over the Statute, and to date, it has not even been listed on the log of "pending cases." It is difficult to state that this had nothing to do with the indolence of the Grand Justices. In contrast, in many cases, including the case under review, the public, on the other hand, have seen the judges of trial courts relentlessly petition for judicial review, hoping to resolve the issue of the improper expansion of authority on the part of the executive agencies.

Arrogant and pompous executive agencies in Taiwan, such as the Ill-gotten Party Assets Settlement Commission, directly expressed disdain for the rulings of a collegiate panel of the court of law; on the other hand, even the Grand Justices, minding only political correctness, dare not to act. That the Judicial Yuan shelved the Control Yuan’s request for judicial review is not the first case of "indolence," either. Earlier, with regard to the request for judicial review over the Statute Governing the Forward-looking Infrastructure Construction, the Grand Justices painstakingly disqualified Kao Chin Su-mei as one of the petioners and citing it as the ground for not taking up the request for judicial review; in the perception of the public, it was tantamount to "whitewashing the case."

The "judges of trial courts" proactively explore the spirit of the rule of law; in contrast, the "Grand Justices," who have the responsibility for judicial review, instead manifested indifference. That such a gap exists in the matter of perception of the rule of law and the sense of responsibility on the part of the Grand Justices and trial judges reflects the juxtaposition of “feebleness and inaction” on the part of Taiwan's judiciary; on whom should Taiwan rely to play the role of "guardian of the Constitution"? Those in Taiwan who still expect justice and believe that the "judiciary has not died,” include those "trial judges" who work laboriously to petition judicial reviews; what a lament! Where is the "guardian of the Constitution”? The Grand Justices face options: to support politics, or support the Constitution?

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