Grand Justices must be Defenders of the Republic of China Constitution

Grand Justices must be Defenders of the Republic of China Constitution
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
September 28, 2007

The Legislative Yuan yesterday exercised its power to approve the president's choices for the Vice President of the Judicial Yuan and eight Grand Justices. Each of the nominees was voted up or down individually, on a "one man, one vote" basis. The result was the Vice President of the Judicial Yuan and four Grand Justices were approved, but four other nominees for Grand Justice were not.

The Council of Grand Justices has 15 members, eight of whose terms overlap the terms of the other seven. Beginning in 2003, eight members began serving four year terms. The other seven began serving eight year terms. When the four year terms of the eight members expire, their replacements will serve eight year terms. Henceforth every four years, half the members (i.e., eight or seven) of the Council of Grand Justices will be replaced. The current personnel replacement is the first of its kind. The system was designed to prevent any single president from nominating the entire Council of Grand Justices. But in fact Chen Shui-bian nominated the first 15 members. And he is now nominating the first eight replacements. Chen Shui-bian is highly controversial. His legitimacy is in serious question. Therefore the nomination and approval process for the Grand Justices, and how they interpret the constitution once they are seated on the bench, will inevitably provoke widespread debate and intense controversy.

The Grand Justices must be Defenders of the Republic of China Constitution. From their lofty perches, the Grand Justices must have a farsighted, visionary understanding of the requirements of Constitutional Republicanism. The Grand Justices must have the moral courage to implement the letter and spirit of the nation's basic law. Otherwise they don't deserve their exalted status. The current Council of Grand Justices has left the public deeply disillusioned. Their interpretations of the constitution reflect surrender to political expedience and obedience to political authority.

Consider the following three interpretations of the constitution: 1. The 319 Truth Commission Case, 2. The National Communications Commission (NCC) Case, and 3. The State Affairs Confidential Expense Case. The 319 Shooting Incident cast serious doubt on the legitimacy of Chen Shui-bian's second term in office. The case was assigned to ordinary law enforcement agencies, including the National Security Bureau, local police, investigators, and prosecutors. Because those suspected of a crime were entrusted to investigate the crime, the public found it impossible to lend any credence to the process. Every day the case remained uninvestigated, was another day Chen Shui-bian remained under suspicion. Obviously this undermined both the legitimacy of his regime and its ability to govern. A special investigative agency established by the Legislature, consisting of both ruling and opposition party members, was the only feasible solution, the only one that stood a chance of gaining the public's trust. But the DPP chose to stonewall, invoking a non-existent and ludicrous "administrative right of resistance." After which it demanded a constitutional interpretation. Grand Justices telephoned legislators attempting to exert undue pressure on them. They even attempted to nullify the constitutionally delegated investigative powers of the Legislature, in order to squelch the Truth Commission. The Grand Justices intended to give Chen Shui-bian a helping hand. In fact they merely guaranteed that Chen Shui-bian would never regain any political legitimacy. That his regime would spin its wheels for the next several years, to the detriment of the nation, and even to the detriment of Chen himself. This is mere one example of the Grand Justices' pusillanimity and myopia under the pressures of realpolitik.

The composition of the NCC is determined differently from other institutions. The reason is governments in recent years have refused to govern in accordance with law. Instead they have manipulated administrative agencies in accordance to their private whims. The opposition parties could no longer allow the Executive Yuan to monopolize the nomination process. They demanded a role for the legislature in determining the composition of the NCC. Given today's political reality, such demands are eminently reasonable. The Executive Yuan, through the Central Election Commission, illegally linked "referenda," more accurately referred to as "plebiscites," with the 2003 presidential election. Yet the Grand Justices turned a blind eye to this unconstitutional behavior. They refused to acknowledge the need for an independent NCC. They hid behind the pretense of "maintaining the separation of powers." They denied the right of the Legislative Yuan to participate in the process. This is how the Grand Justices rationalize their behavior.

The Grand Justices did not prevent the courts from trying suspects in the State Affairs Confidential Expense Case. What the Grand Justices did instead, was invent a "Executive Secrets Privilege," and special evidence and evidentiary procedures, providing Chen Shui-bian with a convenient escape clause. They enabled Chen to use secrecy laws to make all evidence and court records that could convict him unavailable, permanently, in perpetuity, thereby achieving the goal of preventing the case from going to trial. The Grand Justices' "interpretation" of law was tantamount to "making" of law. They were "legislating from the bench." They were willing to be used by Chen Shui-bian. They were eager to be used by Chen Shui-bian. This is a clear illustration of how the Grand Justices' behavior has undermined justice in the State Affairs Confidential Expense Case.

The nominees for the next Council of Grand Justices are mired in controversy. The newly approved Grand Justices will be interpreting the constitution at least until the current president's four years term of office expires. In other words, Grand Justices whom Chen Shui-bian nominated, will interpret the constitution under the next president. The people only can hope that Chen Shui-bian's constitutional abuses will not spread to future Grand Justices, and undermine the future of constitutional government.

大法官應擔當中華民國憲法的守護者
【聯合報╱社論】
2007.09.28 03:23 am

立法院昨日行使司法院正副院長及八位大法官同意權，全體被提名人均採「一票一人」個別同意，結果正副院長及四位大法官過關，四位大法官被提名人遭到否決。

這是自九十二年起，大法官採十五人之中八人任期與七人任期交錯制以來（即九十二年大法官八人任期四年，七人任期八年，八人屆滿之後亦改為任期八年，使大法官爾後均每四年半數更替），首次換屆。此制設計目的在於避免大法官均由同一總統提名，但首屆十五人以及此次更換的八人，卻均由陳水扁提名，而陳水扁確是爭議極大、統治正當性備受質疑者，因而大法官的提名及同意，乃至釋憲職權之行使，也連帶受到社會輿論頗多訾議。

大法官是中華民國憲法之守護者；站在這樣的高度，大法官對民主憲政秩序自當有高瞻遠矚的見識，亦應有貫徹憲法精神的道德勇氣，否則即不配享有如此崇高的地位和榮耀。然而，在本屆大法官任內發生的許多重大事件中，大法官釋憲的結果，卻常見屈從於政治現實或統治權力，令國人十分失望。

茲舉三件釋憲為例：三一九真調會釋憲案、ＮＣＣ釋憲案，及國務機要費釋憲案。三一九事件是導致陳水扁第二任期統治正當性動搖的重大事件。此一事件竟交由通常的國家機制如警調、國安機關以及檢察官來處理，由於受調查者正是掌握權力者，較有事實上的困難，且難以獲得社會信任。然若此一事件一日不獲徹底調查，陳水扁即一日受到質疑，此必將影響政府的施政能力與統治正當性。因此，由國會主導設置調查機制，朝野黨派均派員參與，正是唯一可行的、能獲得公信力的調查設計。然而，民進黨政府一方面以自創的「行政抵抗權」杯葛，一方面聲請釋憲；結果，大法官不但有人在立法院審議真調會條例時打電話給立委關說，還作出了自行將真調會侷限於「國會調查權」的解釋，扼殺了真調會。大法官這種行為看似幫了陳水扁的大忙，實際上卻是使陳水扁重獲統治正當性的機會也因而喪失，其政權陷於這幾年來的內耗空轉，於國家及於其個人其實均大大不利。這是大法官懦弱短淺，受到政治現實牽制的一例。

ＮＣＣ的組成方式之所以與一般機關均不相同，背景因素是政府近年來不依法行政的事例罄竹難書，對諸多行政系統內的合議機關竟亦任意操控，立法院在野黨派遂要求ＮＣＣ的組成必須由立法院參與，不能同意由行政院一手控制。這樣的訴求，在今日政治情勢下，是有一定道理的。行政院透過中選會操作公投綁大選，就是一例。然而，大法官對這樣的政治現實卻視而不見，亦不能接受ＮＣＣ的特殊性，一味以形式上的權力分立為由，否定立法院參與的正當性。這是大法官所為解釋侷限性的一例。

至於國務機要費的釋憲案，大法官雖然並未阻止審判；但大法官解釋中，創設所謂總統「機密特權」以及特別的取證程序，後來仍被陳水扁「鑽巧門」，企圖用核定絕對機密、永久保密的方式，封鎖全部證據及筆錄，達到阻止審判的目的。近來大法官釋憲習於「造法」，卻因此被陳水扁利用，甚或甘受陳水扁利用，以致間接影響了國務機要費弊案的審判，亦即影響了正義的實現，此案即是鮮明的例證。

如今，下屆大法官在爭議中產生了新的人選。新任的大法官將要擔任釋憲工作，至少到下任總統的四年任期屆滿為止。換言之，將是陳水扁提名的大法官，要在新的總統治下行使釋憲職權。國人只能期望陳水扁毀憲玩法的惡劣風氣，不要感染到未來的大法官，亦不要繼續汙染傷害未來的憲政。