Six Judges Create a Constitutional Deadlock

Six Judges Create a Constitutional Deadlock
United Daily News editorial (Taipei, Taiwan, Republic of China)
A Translation
October 9, 2013

Summary: The Chiu Chang "ballot flashing" case was ruled a political matter. The stakes in the Wang Jin-pyng case involve constitutional rule. Yet is is being handled as if it were a convenience store working hours dispute or a divorce case. The footprints of "dinosaur judges" are clear for all to see.

Full text below:

The courts issued an injunction reinstating Wang Jin-pyng as a legislator. The KMT has withdrawn its appeal. But it expects the court to try Wang Jin-pyng as soon as possible. It wants "confirmation as to whether there is even such a thing as KMT party membership." It wants to give the people an answer. A party spokesman said, "I hope the focus can be brought back to the current appeal."

The KMT has withdrawn its appeal. This does not mean it has given up on its demands for a non-political inquiry. Ma maintains that "The Speaker of the Legislature exerting undue influence on the criminal justice system is an extremely negative and serious development. Right and wrong must be clarified, as soon as possible." The KMT is not giving up on its demands for a reaffirmation of right vs. wrong.

A third ruling is pending. The appeal may be upheld or rejected. It will have no effect on Wang's current term. But the rulings on appeals at each level will establish important legal precedents on the separation of powers within the constitutional framework. The focus of the debate is whether political party autonomy and the workings of the legislature are subject to judicial review. In other words, the KMT revoked Wang Jin-pyng's party membership. Wang's loss of party membership inevitably led to the loss of his position as Speaker of the Legislature. The question is whether this is consistent with "justiciability."

Justiciability is a judicial review concept drawn from constitutional law. The matter of what is subject to judicial review is important. Under the principle of the separation of powers, certain matters are subject to judicial review, but other matters are not. They are "non-justiciable."

Take the 2002 DPP's revocation of legislator Chiu Chang's status as Legislator without Portfolio. That year an election for Speaker and Deputy Speaker of the Legislature was being held. Chiu Chang voted for DPP candidate Hongqi Chang. This was confirmed afterwards. But he refused to obey legislative caucus orders to "flash his ballot." As a result the DPP expelled him from the party for " breach of legislative caucus procedure." Chiu Chang filed suit. The court dismissed his suit within three days on grounds that "The court must not interfere in political matters. Expulsion from a political party is an internal matter." This ruling shows that the courts held that political party autonomy is non-justiciable. The court ruled that it "must not interfere in political matters." This judicial review mentioned the doctrine of political matters. This is considered a matter of necessary judicial restraint.

Under the tripartite separation of powers, the courts consider certain political matters non-justiciable. There are many reasons for this. The main reason is that the judiciary and the legislature are different. Legislators are usually elected. Judges are usually appointed. The "politics of responsibility" means legislators must bear political responsibility. Judges on the other hand, need not bear political responsibility. Therefore, if the conduct of legislators involves "matters of procedure" the courts should recuse themselves and not become involved. They must respect the politics of responsibility in action. When the courts intervene, political responsibility evaporates. Furthermore, intervention by the courts could result in the politicization of the criminal justice system and the undermining of the separation of powers. Other scholars point out that "When the courts intervene in politics, they do more harm than when they do not." Therefore they must exercise judicial restraint.

The Chiu Chang case can be compared to the Wang Jin-pyng case. In the Chiu Chang case, the court ruled that political party autonomy meant the case was non-justiciable. This attests to the existence of such a concept within our nation's criminal justice system. Yet in the case of Wang Jin-pyng, six judges from the District Court and the High Court, for no reason whatsoever, intervened in a party disciplinary procedure. They refused to recuse themselves despite the danger of politicizing the criminal justice system. Chiu Chang was expelled merely because he refused to flash his ballot. Suppose Chiu Chang had committed crimes or infringed the freedom of the DPP? Should the court have upheld Chiu Chang's "right to privacy?" The court stayed completely out of Chiu Chang's dispute with the DPP. It ruled that "The court must not become involved in politics" and dismissed Chiu Chang's appeal. By contrast, in Wang Jin-pyng's case, the High Court Full Court openly declared that "Undue influence on the justice system is not a universal value with clear right and wrong. It does not fall within the scope of this case." This declaration shows that the full court knew perfectly well that the case was a political matter. Otherwise, how could it say that "Undue influence on the justice system is not a universal value with clear right and wrong," then declare that it "must not intervene in political matters," and that it "does not fall within the scope of this case?" The above clearly shows that the case is non-justiciable. Yet the ruling in this case clearly violates the principle of judicial non-interference in politics and resulted in the politicization of criminal justice.

This case involves the question of whether undue influence on the justice system is a universal value with clear right and wrong. It involves the question of political party autonomy. It involves the President and the Speaker of the Legislature's rules of procedure. It involves the termination or continuation of the Speaker of the Legislature's official status. It involves constitutional rule, criminal justice, and national security. If this is not a"political matter as defined in the  court's own judicial review, what is? Yet in the Wang Jin-pyng case, six judges overrode political party autonomy. The overrode the president's and the premier's rules of procedure. They hijacked the entire legislature. Are these six judges overlords whose authority trumps the president's? Are they overlords whose authority trumps the party chairman's? The Wang Jin-pyng case must provide answers to these questions.

The Chiu Chang "ballot flashing" case was ruled a political matter. The stakes in the Wang Jin-pyng case involve constitutional rule. Yet is is being handled as if it were a convenience store working hours dispute or a divorce case. The footprints of "dinosaur judges" are clear for all to see.

六名法官造成的憲政僵局
【聯合報╱社論】
2013.10.09 02:33 am

國民黨撤回對王金平「假處分」的再抗告，同時也希望法院能盡速審理王金平所提「確認國民黨籍是否存在」之本訴，給民眾一個答案。發言人說：希望焦點拉回本訴。

國民黨對「假處分」撤告，但並不表示已放棄對於此一政治是非的探究，馬英九仍說「國會議長涉關說司法，非常負面、嚴重，需盡速釐清是非」，亦即不放棄在本訴中論個黑白。

本訴尚待三審定讞，因此，無論本訴勝敗如何，對王的任期皆已無影響；但是，本訴在各審級的審判中，仍將對「三權分立」的憲政架構作出一個重要的判例，其焦點的議論是：政黨自治（國民黨撤銷王金平黨籍）及國會運作（王金平因保有黨籍即必然造成保有立院院長身分之後果）是否符合「可司法審理性」（justiciability）。

「可司法審理性」是憲法學上關於「司法審查」（judicial review）的一個重要概念，意指在「三權分立」的原則下，有些事務可接受司法審理，但有些事務卻非司法機構所宜審理，亦即所謂「不可司法審理性」（non- justiciability）。

先回顧二○○二年民進黨開除不分區立委邱彰案。是年舉行立法院正副院長選舉，邱彰圈選了民進黨的候選人洪其昌（事後證實），但拒絕依黨團指示「亮票」，於是民進黨以「違反黨團議事運作」開除了邱彰的黨籍。邱彰告到法院，法院在三日內即予駁回，理由是「法院不干涉政治，開除黨籍是政黨內部事務」。此一判決顯示，法院認為政黨自治屬於「不可司法審理性」的範圍。而法院所稱「法院不干涉政治」，亦即「司法審查」中所說的「政治問題原則」（political question doctrine），這被視為「司法自制」（judicial restraint）的必要範圍。

在「三權分立」的架構之下，法院對於某些「政治問題」採取「不可司法審理性」的立場。其理由之一是，政治部門與司法部門最大的差異是在，政治部門往往由選舉產生，且在「責任政治」的原則下必須承負政治責任；但司法部門卻非選舉產生，亦不必負政治責任。因此，政治部門的作為若涉「統治行為」，司法即應「自制」而不「介入」，以尊重「責任政治」的運作。倘司法貿然介入，「責任政治」即告解構。再者，司法介入，可能造成「司法政治化」的結果，破壞了「三權分立」；另有學者指出「當司法介入（政治）的惡害大於司法不介入之惡害」，即應知「司法自制」。

可將邱彰案與王金平案作一比較。法院在邱彰案上主張政黨自治符合「不可司法審理性」，足證在我國司法體系內亦有此種思想；但在王金平案，地院及高院兩合議庭的六名法官，卻明白介入已經完成黨內程序的黨紀處分，且不迴避「司法政治化」的後續嚴重效果。再者，邱彰只因「拒絕亮票」而被開鍘；倘若邱彰亦以強制罪或妨害自由罪控告民進黨，難道法院亦應維護邱彰的「私權」？但法院卻完全不介入邱彰與民進黨的爭執，逕以「法院不介入政治」駁回邱彰之訴。相對而言，在王金平案中，高院合議庭公開說：「司法關說的是非對錯是普世價值，不在本案審理範圍」。這句話其實顯示，合議庭明知此案是「政治問題」，否則怎會說「司法關說的是非對錯是普世價值」；且亦知法院不宜介入「政治問題」，否則怎會說「不在本案審理範圍」。凡此，皆可見本案的本質符合「不可司法審理性」。但是，本案的裁定卻逾越了「司法不干涉政治」的界際，造成了「司法政治化」的後果。

本案涉及「司法關說的是非對錯是普世價值」，並涉及政黨自治，亦涉及總統及行政院長的「統治行為」，又涉及立法院長身分的停續，更牽動了憲政正義及國家安危的重大影響；這若不是「司法審查」上所指的「政治問題」，什麼才是政治問題？但是，審理王金平假處分案的六名法官卻儼然凌駕了政黨自治、總統與閣揆的「統治行為」、並挾持了整個立法院，難道這六名法官是太上總統？太上黨主席？未來，法院在審理王金平案的本訴中必須回答這些問題。

將涉及「亮票」的邱彰案視為「政治問題」，卻將涉及憲政利害如此重大的王金平案恍若視作一樁超商打工仔的工時糾紛或一樁離婚官司。這種司法，會不會是恐龍的行跡？