Grand Justices amidst a Constitutional Crisis

Grand Justices amidst a Constitutional Crisis
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
September 12, 2007

The Legislative Yuan has decided to exercise its right of advise and consent over the presidential appointment of Judicial Yuan Grand Justices, Control Yuan officials, and the Auditor General. Whether the opposition party will approve any or all of the president's nominees is uncertain.

The Grand Justices' legal opinion in Case No. 632 states: "[Regarding the appointment of Control Yuan personnel] the constitution does not permit the Legislative Yuan to passively forfeit its power of advise and consent." As it turns out, the political opposition is changing its strategy. From a constitutional perspective, the Grand Justices are correct. But from a practical perspective, the dilemma is rooted in Chen Shui-bian's incompetence and corruption. Any solution will need to balance both the requirements of constitutionalism and the requirements of justice.

The legislature delayed exercised its power of advise and consent in the appointment of Control Yuan officials for many years, because it suspected Chen Shui-bian's motives for nominating financial conglomerate head Yin Chi. Chen's list of nominees was controversial and disappointed public expectations. The opposition party within the Legislative Yuan refused to consider Chen's nominees. For years Chen Shui-bian responded in kind by refusing to nominate any alternates. As a result, the Control Yuan has been deadlocked.

Chen Shui-bian's term is nearing its end. Control Yuan officials are not alone. The terms of half the Grand Justices and the Auditor General are also nearing their ends. Chen Shui-bian has expressed a willingness to submit a new list of nominees for the Control Yuan. The opposition party has agreed to evaluate his nominees. The Legislative Yuan has decided to exercise its power of advise and consent. First it intends to tackle the nominees for Grand Justice and the Auditor General. The circumstances today, however, are somewhat different. Back then Chen Shui-bian's nominations were suspect because of whom he nominated and how he nominated them. Now Chen Shui-bian's nominations are controversial because of his personal corruption and incompetence. Recently Chen Shui-bian went so far as to publicly insult the judiciary over the State Affairs Confidential Expense scandal. Under the circumstances, how can anyone trust him to nominate new Grand Justices? Furthermore, Chen Shui-bian's list of nominees reveals flagrant political bias. It invites public controversy over the professionalism and competence of political appointees. Therefore the Legislative Yuan's refusal to consider Chen's nominations may not accord with the Grand Justices' interpretation of the constitution. But for the legislature to repeatedly cave in and rubberstamp anyone nominated is hardly an acceptable alternative. The opposition party must give careful thought to how this matter should be handled.

The Grand Justices' legal opinion in Case No. 632 reads: "[Regarding the appointment of Control Yuan personnel] the constitution does not permit the Legislative Yuan to passively refuse to exercise its power of advise and consent." If the Legislative Yuan considers the nomination inappropriate, it is within its rights to veto the nomination. There is no question of whatsoever of "violating the constitution." If a veto impacts the Grand Justices' performance of their duties, the only choice the president has is to nominate another candidate. The Grand Justices' legal opinion in Case No. 632 also states that "The constitution does not permit the president to passively refuse to nominate another individual." The constitution cannot simultaneously tolerate the president violating the constitution while objecting to the legislature violating the constitution.

How many nominees for Grand Justice the Legislative Yuan may veto, and how many candidates the president must renominate, may be in dispute. The Grand Justices' legal opinion in Case No. 632 should be based on the impact on the Grand Justices' fulfillment of their duties. According to the rules, an interpretation of the constitution requires a quorum comprising two thirds of the "current number" of Grand Justices. If two thirds of the "current number" express an opinion, then the opinion stands. But if the "current number" of Grand Justices has already fallen below this number, this may affect the proper functioning of the Council of Grand Justices. The question is, what do we mean by the "current number?" According to the constitution, if the "current number" is 15 persons. Two thirds means 11 persons. Eight nominees have been submitted for legislative approval. If five or more nominees are rejected, the shortfall must be made up by the president. But suppose the "current number" is taken to mean "those currently serving." Suppose eight persons are nominated, and only one or two are approved. Then there will only be 10 Grand Justices. A two thirds quorum, consisting of only seven persons, would be interpreting the constitution. Is this few too few? Should the numbers be supplemented by new nominations? This issue will surely be subject to political interference.

The Grand Justices are the Guardian Angels of constitutionalism. The Control Yuan is the nation's "Internal Affairs Division." Chen Shui-bian, a destroyer of the constitution and an abuser of the authority of his office, will be nominating these officials. That is a national tragedy. The opposition party respects the Grand Justices' interpretation. It may be obligated to exercise its power of advise and consent. But the defense of constitutionalism requires checks and balances. If unqualifed persons are nominated, the legislature must cite their reasons, then veto any such nominees. The public will understand. For the legislature to constantly cave in would constitute a gross dereliction of duty, and would warrant harsh public condemnation.

在憲政亂流中提名大法官
【聯合報╱社論】
2007.09.12 02:55 am

司法院大法官、監察院以及審計長人事同意案，立法院已決定行使同意權，但在野黨是否將不同意部分甚或全部人選，則尚屬未定。

此一演變固與大法官釋字六三二號解釋指「（就監察院人事）立法院消極不行使同意權……為憲法所不許」有關，但在野黨改變了杯葛的策略更為關鍵因素。因為， 就憲法體制而言，大法官所言雖有其依據；但就實際情勢來看，眼下的問題卻是陳水扁失政敗德所造成的。今後如何處理，恐怕還是要在憲政體制和公平正義之間求 得平衡。

回顧監察院人事同意權延宕多年之背景，起因是陳水扁在提名過程中讓財團人士殷琪參與其事，引發質疑；且最後入選名單有相當大的爭議，不孚眾望，立法院在野黨遂拒絕審議。而陳水扁多年來亦以強硬態度應對，拒不重新提名，以致監察院停擺迄今。

如今，陳水扁任期已近尾聲，而非僅監察院，大法官（半數）及審計長等人事均已屆期，陳水扁乃表示願改變監院名單，在野黨亦表示不再杯葛，立法院遂決定行使 同意權，且先處理大法官及審計長之人事案。然而，現今情勢又與當初有所不同；當初是因陳水扁提名過程及名單均有爭議；如今則更因陳水扁貪腐纏身，執政失去 正當性所致。陳水扁近日甚至因其國務機要費案件，出言辱及司法，在此情況下，由其提名大法官，實難獲得社會信任。更何況，在陳水扁提出的大法官名單中，確 有政治立場偏頗、擔任政務官時引起物議的人士濫竽其間。因而，拒不審議固與大法官釋憲不符，但一味妥協、全數通過亦顯不恰當，如何妥適處理，在野黨自應慎 重考慮。

就此而言，大法官釋字六三二號解釋僅謂立法院消極不行使同意權為憲法所不許；唯倘若立法院認為提名不當、予以否決，則無「違憲」問題可言。若因否決而發生 影響大法官會議之功能，總統唯有重新提名一途，否則即屬大法官釋字六三二號解釋所謂「總統消極不為提名……為憲法所不許」的情況，變成總統違憲而非立院違 憲。

至於大法官被提名人選，立法院否決到多少人數，總統必須重新提名，恐怕會有爭議。參照大法官釋字六三二號解釋，應以是否影響大法官的功能為準；而依照大法 官審理案件法的規定，釋憲須有「現有總額」三分之二以上大法官出席、出席三分之二以上通過，則通過人數在此標準以下，可認定為影響其功能。問題是：何謂 「現有總額」？倘以憲法規定人數為準，則「總額」為十五人，三分之二以上須十一人，此次提名八人，則若不通過者超過四人，達到五人或以上，即須由總統補提 名。但「總額」若以「實際在職」人數為準，則本次提名八人，若僅一或二人通過，連同在職者，則為不到十人；三分之二出席，就成了七人亦可釋憲，如此人數是 否過少，應否補提名？此一爭議如何認定，必受政治鬥爭之干擾。

大法官是憲政正義的守護神，監察院則職司風憲；如今卻讓毀憲亂政至此地步的陳水扁行使提名，實是國家的悲劇。在野黨為尊重大法官解釋，或許不能拒審；但為 維護憲政，必須嚴予把關。若有不適任人士，只要有具體的理由，即應否決，社會大眾定能接受；倘若一味放水，反而是立院放棄責任，將受輿論責難。