Is Someone Who Refuses to Recognize the Constitution Qualified to Interpret the Constitution?
United Daily News Editorial (Taipei, Taiwan, ROC)
October 21, 2016
Executive Summary: The Legislative Yuan has recently been reviewing nominees for chief justices of the Supreme Court. During questioning, two striking phenomena have appeared. First, some nominees have raised questions about abolishing the death penalty or gay marriage. These are sensitive issues that depart from current social norms. Secondly, some nominees have not been shy about their views on national identity, and their hostility toward the existing constitution and political framework.
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The Legislative Yuan has recently been reviewing nominees for chief justices of the Supreme Court. During questioning, two striking phenomena have appeared. First, some nominees have raised questions about abolishing the death penalty or gay marriage. These are sensitive issues that depart from current social norms. Secondly, some nominees have not been shy about their views on national identity, and their hostility toward the existing constitution and political framework.
Of the two, the latter is far more worrisome than the former. Many members of the public cannot accept the abolition of the death penalty or the legalization same-sex marriage. But education, social movements, even legislation, could lead to gradual change. Many nominees personally favor the abolition of the death penalty. This does not necessarily reflect the imminent abolition of the death penalty by the Conference of Justices. After all, the Conference of Justices involves prolonged debates, and not a summary judgment.
What is truly questionable are the nominees who refuse to recognize the existing constitutional framework. How can they be considered qualified to interpret the Constitution? The main duty of a chief justice is to interpret the Constitution, or offer a unified interpretation of conflicting laws, procedures, and orders. If a chief justice is in fundamental disagreement with the design and spirit of the Constitution, or worse, regards the Constitution with contempt, how can he or she be considered qualified to interpret the Constitution?
Consider recent reviews. Hsu Chung-li, a justice and chief justice nominee, shared his view on cross-Strait relations. He believes, now as in the past, that relations between Taiwan and the Mainland are akin to relations between East and West Germany, that they are "special state-to-state relations". He believes that the sovereign territory of the Republic of China does not include territory controlled by the People's Republic of China. This view is the "two-states theory". It contradicts the spirit of the Constitution of the Republic of China. It even contradicts President Tsai's position as expressed in her inaugural address. The MAC was quick to dismiss it. This added to the controversy over Hsu Chung-li's nomination to justice and chief justice.
Among the nominees for chief justice, the most difficult to accept is that of Hsu Chi-hsiung. During his review, Hsu said, "People cannot violate their consciences". He said “The Three People's Principles is problematic". He even said that Taiwan is not a normal nation, that the Republic of China is a "discarded" nation, and that Taiwan needs a new constitution, as soon as possible. When referring to "historic territory" as stipulated in the Constitution, he was even more contemptuous, and wondered whether it referred to territory fought over during the "Yellow Emperor's war with Chi You". Nominee Huang Chao-yuan, not to be outdone, said the name “Republic of China” was “mere nostalgia", and that he already had his fill of singing the national anthem.
As legal scholars, these people are free to hold whatever political views they wish. But will these candidates for chief justice be interpreting a constitution for which they have nothing but disdain? How can they possibly be considered qualified to do so? How can they do anything, other than add to the nation's troubles and fragmentation?
The parable of “The Father and Son Riding a Donkey” warns against the folly of trying to please everyone. Tsai Ing-wen appears to have forgotten this lesson. She has lost control of the nomination process for justices and chief justices. President Tsai's initital nominees for chief justice and deputy chief justice were Hsieh Wen-ting and Lin Ching-fang. They were not outstanding, but they were at least qualified. Green camp elements however, were unhappy, and forced the two candidates to withdraw. Tsai Ing-wen then nominated Hsu Chung-li, who may have violated the constitution, as president of the Judicial Yuan. In fact, Hsu Chung-li himself admitted that during the first wave of nominations, he was supposed to be vice president of of the Judicial Yuan under Hsieh Wen-ting. But because a second term was unconstitutional, Hsieh was forced to withdraw. During the second wave of nominations, Hsu Chung-li was nominated president of the Judicial Yuan. The government again argued on behalf of a second term. It assumed that the issue of constitutionality could be interpreted however it wished. These nominations, rammed through by force,
have led to the absurdity of “violators of the constitution interpreting the constitution”.
We do not understand why President Tsai was willing to risk nominating judges who are obviously ineligible. Was it merely impetuousness and imprudence? Was it merely to pander to the green camp? Was it a deliberate attempt to showcase her own political ideals? Whatever the case may be, most nominees hailed from the Ministry of Justice and certain law firms. They represent inbreeding within the legal community, even political factionalism. In the event these people, good and bad alike, pass muster, the Constitution will fall into their hands. What will it look like after it is butchered? One cannot help but worry.
A good judge can endow the Constitution with broader and more profound significance. But a biased judge will be seen as a tool by which President Tsai carries out "judicial Taiwan independence."