Petitioning the Grand Justices to interpret the Constitution is no longer just a concept in a book, nor is it a process only invoked for matters of national importance such as the downsizing of the provincial government or the question of whether a vice president can also be premier. Rather, it is a basic right enjoyed by all.
In 1993, Huang Chih-chia of Shuishang Rural Township in Chiayi County was a boy of 10. His classmates at school liked to make fun of him by calling him "Yellow Fingernails," a pun on his name. His father, Huang Mao-lin, went to the household registry office and applied to change his son's name, but the authorities rejected his application on the basis of a 1976 Ministry of the Interior ordinance which states: "The interpretation of 'offensive or inelegant' [as grounds for changing a name] shall not be extended to include homophones or meanings derived from individual elements of characters."
They won't let me change my name!
Unhappy with this decision, Huang Mao-lin appealed against it twice and then brought an action in the Administrative Court, but to no avail. (The Administrative Court hears cases against government agencies brought by private persons-natural or juridical-who are dissatisfied with the outcome of appeals against administrative decisions.) But then at the suggestion of his brother-in-law Yu Jen-wei, a court clerk in the Chiayi District Court, Huang petitioned the Grand Justices of the Judicial Yuan for a constitutional interpretation. The petition which Yu drafted on his behalf pointed out that while the household registration authorities had refused the application to change Huang Chih-chia's name on the grounds that "the interpretation of 'inelegant' shall not be extended to include homophones," the court itself, in its judgment, attempted to console him with a number of "good" interpretations of his name, themselves based on near-homophones. Could it be that only learned judges were qualified to make such "extended interpretations"?
In March 1996, the Council of Grand Justices (CGJ) delivered Constitutional Interpretation (CI) 399, which responded to Huang Mao-lin's petition as follows: "The right to determine personal and family names is part of the right to human dig- nity. . . . Therefore [the right to decide] what name to use is a freedom enjoyed by the people and as such is protected under Article 22 of the Constitution. . . . The provision that 'the interpretation of "offensive or inelegant" shall not be extended to include homophones or meanings derived from individual elements of characters' is inconsistent with the aforesaid principle; its basic intention conflicts with the constitutional protection afforded to the right to human dignity, and it should not be applied."
Petitions increasing yearly
The Constitution is the "guarantor of the people's rights," and the Grand Justices' constitutional interpretations have been described as "the living voice of the Constitution." The Council of Grand Justices was 50 years old this year, and in its half-century of existence has made over 460 constitutional interpretations. The proportion of cases accounted for by petitions from individual members of the public such as Huang Mao-lin is growing year by year.
According to statistics (see graphs, overleaf), the proportion of direct petitions from private persons (including both natural and juridical persons) has grown from 34% for the first council (1948-1958) to 93% for the sixth council (1994-1998), and from none to 78% among cases on which the CGJ has ruled.
The overall number of cases referred to the CGJ has also shot up over the last few years. In fact, rulings delivered in the 11 years since martial law was lifted in Taiwan account for over half of all the council's constitutional interpretations. Professor Yeh Jiunn-rong of National Taiwan University's law department says that as well as post-martial-law political factors which have encouraged the CGJ to take a more active role, the diversification of channels for petitioning the council, along with a number of rulings which have struck a chord in society, have promoted the trend of an ever-increasing number of private petitions.
According to the Law on the Consideration of Cases by the Grand Justices of the Judicial Yuan, private persons may only petition the Grand Justices if their rights have been violated, they have received no satisfaction in the courts, and they believe the articles of law applied in the judgment of their case violate the constitution. In the analysis of Chiang Tsu-ning, head of the Secretariat of the Grand Justices, most of the private petitions raised over the years have revolved around basic constitutional rights. In earlier years, petitions concerning property rights and the right to equality before the law dominated, while in recent years such issues as human rights, gender equality and the right to liberty have come to the fore.
Tax disputes top the bill
In the area of petitions relating to property rights, attorney Chen Ching-hsiu of Chen Shyuu-pun Law Office, who specializes in tax law and administrative litigation, can rightfully be called an expert. He has filed dozens of petitions for constitutional interpretations on clients' behalf, and the CGJ has ruled on 21 of them-almost one-20th of the total number of constitutional interpretations the council has delivered in its 50 years of existence.
Chen says the largest number of disputes concerning citizens' property rights relate to tax law, and mostly involve government agencies' appeal rulings and Administrative Court judgments thought to violate the Constitution. Taiwan's property and taxation laws are fairly well developed, so the law itself is rarely challenged; most problems arise when interpretations and rulings made by government agencies as they carry out their statutory duties go against the spirit of the law or the Constitution, and citizens suffer losses as a result. He also notes that it is most often small and medium enterprises (SMEs) whose rights are infringed upon in the tax arena, the reason being that smaller companies' administrative systems are often not very sound, so that oversights easily occur in their tax filings. If the tax authorities interpret the law incorrectly or the Administrative Court makes rulings which violate the Constitution, the firms' rights are likely to suffer.
Chen cites the example of a case involving commodity tax, which is levied on the sale of goods. Due to an oversight, an SME owner who had already paid his commodity tax was deemed by the tax authorities to have evaded tax, because under the 1971 commodity tax regulations and a 1977 Ministry of Finance appeal ruling, certificates of tax payment or exemption had to be affixed to the packaging or containers of goods, and failure to do so was to be treated as tax evasion regardless of whether tax had actually been paid, subject to a penalty of two to ten times the amount involved. Chen Ching-hsiu thought it reasonable for the tax authorities to penalize companies for failing to affix tax certificates, but clearly unreasonable for them to treat such failure as tax evasion.
After an unsuccessful action in the Administrative Court, Chen petitioned for a constitutional interpretation, and the Grand Justices ruled that the relevant section of the commodity tax regulations "conflict[ed] with the constitutional principle of protecting the rights of the people." Thus Chen's client finally got justice.
"SMEs have limited financial resources, and the initial process of seeking legal redress, from appealing to the government agency concerned to taking action in the Administrative Court, takes one-and-a-half to two years. If they then petition the Grand Justices for a constitutional interpretation it may take another two years to get a ruling. But four years of legal proceedings is too much for most business owners," says Chen, who laments that if government agencies could only be more professional in drafting their appeal rulings, and if the judges in the Administrative Court would refuse to apply executive decrees and instead base their judgments directly on the law, then these problems could be avoided, and it wouldn't take rulings from the Grand Justices for citizens to get their rights enforced.
In view of this situation, the Legislative Yuan (LY) recently passed amendments to the Law on Administrative Appeals, which may bring improvements to the process of seeking legal recourse in administrative matters.
Desperately seeking cases
Most property rights cases in which constitutional interpretations are sought affect individual citizens' rights, and attract little outside attention or interference. But in other areas social forces (such as civic groups and the media) or political forces (elected representatives) often get involved. The clearest example of this is in the area of gender equality issues.
Attorney Dagmar Yu, a standing member of the supervisory board at the Awakening Foundation, has long been working for equality of the sexes. She says that although the feminist movement has been very active in Taiwan in recent years, the fact that to date only three constitutional interpretations to do with gender equality have been passed down suggests that social progress in this regard has been slow to say the least.
The basic social unit in Taiwan has traditionally been the "family," with primacy being given to patriarchal power, and with women generally playing a dependent role. The wording of the family law section of the ROC Civil Code reflects such attitudes.
Dagmar Yu observes that from the time when the family law section was enacted in 1931, it was not amended for the first time until 1985, and then only to add the rider "except as otherwise agreed by the parties concerned" to articles regarded as controversial in terms of gender equality, such as the requirements that women must take the same family name and residence as their husbands.
"On the surface it might appear that the Civil Code's family law section has improved to some degree, but in fact despite a decade of amendments we have still not got away from the precedence of men over women," says Dagmar Yu.
The Awakening Foundation came to the realization that simply waiting for the government to change the law of its own accord was not enough, so it began to get involved in the process of amending legislation. Foundation chairwoman Ku Yen-ling says that as well as actively lobbying Legislative Yuan members, they also drafted their own version of the family law section as they wished to see it amended. "The new law passed by the LY in 1994 was an amalgamation of the versions proposed by the Warm Life Association for Women and the Awakening Foundation," she says.
In fact, amendments to the family law section had previously been tabled in the Legislative Yuan, but had never made it onto the legislative agenda. Then, in 1994, the Council of Grand Justices delivered the first ruling on gender equality in ROC constitutional history, in a divorce case in which the wife had failed on appeal to gain custody of her children. The CGJ ruling read: "The provision in the family law section of the Civil Code that 'when the opinions of the parents differ as to how their rights of guardianship over their children shall be exercised, the father's opinion shall prevail' is inconsistent with the spirit of the Constitution. The law should be amended within two years." Only then did the LY begin actively working to change the legislation. This made women's groups realize that having the Grand Justices declare unfair statutes unconstitutional was far quicker than lobbying the legislature for amendments.
"But citizens' petitions for constitutional interpretations have to be raised by private persons whose rights have been infringed. In fact, the Awakening Foundation has been making appeals in the media since 1990 for individuals to come forward so that we can support them in seeking a constitutional interpretation. But the response has been disappointing-possibly because most people have the attitude that one doesn't wash one's dirty linen in public, and also because feminist issues often gain the attention of the media, so that the parties involved have frequently received unwelcome exposure. This puts most people off," says Dagmar Yu, who comments that as far as test cases for constitutional interpretations are concerned, interest groups have to take what they can get.
Legislators blaze a trail
Is there no channel by which a constitutional interpretation can be sought without an individual court case? The Law on the Consideration of Cases by the Grand Justices states that when the Legislative Yuan has doubts over how the Constitution regulates its operation, or if it suspects that a law it is applying is unconstitutional, it may petition the CGJ by the signature of at least one-third of its members. The ruling described above on the precedence given to the rights of fathers was made in response to a petition signed by LY member Hsieh Chi-ta and others.
"Lobbying LY members to petition for a constitutional interpretation is another viable channel open to citizens, because for the Legislative Yuan to amend the law directly requires one-third of the members to be present on the day and a majority to be in favor, but a petition for a constitutional interpretation only requires the signatures of a third of LY members, which can be gathered over a period of time. This is obviously much easier to achieve," says NTU law professor Yeh Jiunn-rong.
Citizens' petitions can only be made after a final verdict has been reached in a court case, and although private persons or civic groups can lobby LY members to petition on their behalf, both these routes are very time consuming.
But are judges powerless against unfair laws? According to the Law on the Consideration of Cases by the Grand Justices, the only courts which can petition for constitutional interpretations are the Supreme Court and the Administrative Court.
"Such a provision indubitably means that even when district courts and the High Court discover that 'the law is an ass' as it relates to the cases they are hearing, they still have to apply it regardless," says Lin He-ming, a senior reporter in the United Daily News legal news section.
Judges challenge bad laws
Happily, the Grand Justices have instituted a reform in this regard. In 1992, LY Member Wu Tsu and others petitioned the Grand Justices for an interpretation on this point. In CI 371, delivered in 1995, the Grand Justices ruled: "A judge who when hearing a case has reasonable grounds to believe that the law as applicable thereto may violate the Constitution, should be entitled before ruling to seek resolution by petitioning for a constitutional interpretation." CI 371 extended the right to petition the Grand Justices to courts at every level, thus giving greater protection to the people's rights.
However, this reform does not seem to have had any great practical effect, for to date the number of cases in which lower courts have requested constitutional interpretations can be counted on the fingers of two hands. Lin He-ming feels that one of the main reasons why judges have been less than forthcoming in this regard is that writing a petition is far more difficult than writing a judgment, and judges are generally under great pressure of work, with each of them having to hear an average of 200 cases a month. Even if they do meet with cases where the law may be an unconstitutional "ass," they may find the effort too great.
Busy or not, there are still some judges willing to challenge the existing law. For instance, Chen Chih-hsiang, a judge in the criminal division of the Taipei District Court, has petitioned for three constitutional interpretations: one on whether third-time drug abuse offenders should be subject to mandatory life imprisonment or death; another on whether the scope for compensation under the Regulations on Applications for the Restitution of Citizens' Rights Violated Under Martial Law was too narrowly defined and the requirements for documentary evidence too rigorous; and a third on whether mandatory life imprisonment or death for drug traffickers was unconstitutional.
"As a judge, it is only proper to fight for the people's rights. Furthermore, a judgment only applies to a particular case, but a constitutional interpretation may change the outcome of hundreds or even thousands of similar cases," says Chen Chih-hsiang.
Seen in this light, when ordinary citizens find their basic constitutional rights being infringed, they should be able to remind the judge to come to their aid by petitioning for a constitutional interpretation. "But," says Yeh Jiunn-rong, "judges like Chen Chih-hsiang are in the minority. As well as being overworked, there is also the problem that most judges are 'constitution-blind.' Judges in Taiwan generally feel that constitutional questions do not fall within their purview."
Sowing for others to reap?
The avenues open to citizens wishing to seek constitutional interpretations are growing ever more numerous, but because the CGJ only determines whether the law as applied to individual cases is constitutional, and does not hear the cases themselves, private petitioners rarely obtain immediate relief from its rulings. They merely set a precedent, thus "sowing for others to reap."
CI 452 is just such an example: After Chen Li-feng, a resident of Taipei County's Linkou Rural Township, was deserted by her husband, she moved her own and her two sons' registered residence out of Linkou. But when her husband learned of this he took her to court, accusing her of failing to fulfill her duty of common residence, and both the first court and the courts of appeal found against her on the basis of the Civil Code provision that "the husband has the right to decide the place of residence." With the help of her lawyer and of women's groups, Chen Li-feng petitioned for a constitutional interpretation.
In Chen Li-feng's case, the Grand Justices ruled that the obligation of common residence violates the constitutional principle of equality between the sexes. However, they did not strike the law down immediately, but instead declared that it would "become invalid after one year at the latest." Thus, according to the principle that the law should not be retroactive, this decision was of no help to Chen Li-feng.
Because the Grand Justices frequently attach such "sunset clauses" to their rulings, successful petitioners often gain no immediate benefit. Grand Justice Sun Sen-yen says this situation will be improved by the new Law on the Consideration of Cases by the Grand Justices, which is now in committee in the Legislative Yuan. The amended law will stipulate that a sunset clause will not apply to the petitioner, so that he or she will be able to obtain remedy directly.
Improving legislative quality
Apart from sunset clauses, another sore point with petitioners is the backlog of cases before the CGJ. Usually a petitioner has to wait one-and-a-half to two years before the Grand Justices deliver a ruling.
"The Grand Justices have already stepped up the pace of their work. When the sixth council took office, there were a large number of cases pending, and in recent years there has been an ever-increasing number of petitions. That's what's behind the backlog," says Grand Justice Sun. "The Grand Justices have to be extremely careful in interpreting the Constitution. We can't become slipshod just because the number of cases has increased."
"In fact," says Yeh Jiunn-rong, "a backlog of cases in constitutional courts is a widespread phenomenon internationally. All cases within the ROC requiring interpretation of the Constitution have to go through the CGJ, so delays are almost inevitable." But to protect the people's rights, and to ensure the proper functioning of the rule of law, the CGJ does prioritize cases according to their gravity and urgency.
In Professor Yeh's view, to completely clear the backlog would appear to be virtually impossible, but one thing which could be done would be to give the Grand Justices more research staff, to save them time in examining and collating information; this would increase the CGJ's productivity. Yeh also stresses that the role of constitutional interpretations in protecting human rights has given people the mistaken impression that this is a highly convenient procedure, so that many place high hopes in the Grand Justices. But the public should not be continually appealing to them as if they were an agency of the executive branch of government-the only fundamental way to protect human rights is to demand that the Legislative Yuan improves the quality of its legislative work, so as to reduce the number of bad, unconstitutional laws, and to raise the government's and judges' awareness of the Constitution.
A passive role
Poorly drafted legislation increases the demand for constitutional interpretations. This phenomenon is particularly evident in Taiwan.
Attorney Kenneth Chiu of the Taiwan Association for Human Rights observes that while it is true that the ROC Constitution first came into force more than 50 years ago, during most of this time the "abnormal" situation of the "Period of National Mobilization for Suppression of the Communist Rebellion" prevailed. It is only since the lifting of martial law in 1987 and the ending of the Period of Mobilization in 1991 that normal operation of the Constitution has gradually been restored. Hence the full practical application of the spirit of the Constitution has only occurred over these last few years.
Chiu comments: "Because of the special political climate of the time, many laws and ordinances passed during the Period of Mobilization infringed basic human rights to a greater or lesser degree. But since the end of the Period of Mobilization, no comprehensive and thoroughgoing program of legislative review and amendment has been conducted in the ROC. Hence those laws which more seriously infringe human rights give rise to cases which call for constitutional interpretations, and, even if the public at large is generally not aware of it, continue to be a part of our lives."
For example, he says, after martial law was lifted, many regulations introduced under martial law, such as the restrictions on the names and operation of civic organizations in the Law on Civic Organizations, the restrictions on citizens leaving and entering the country in the National Security Law, the Law Governing Police Offenses (which gave the police extensive summary powers) and others plainly violated the Constitution, but they were not promptly reviewed. Some of the more serious examples have been amended-for instance, the Law Governing Police Offenses has been replaced by the Statute for the Maintenance of Social Order-but thus far the vast majority have not been reviewed in the Legislative Yuan. "If all these unconstitutional laws can't be amended until they've been struck down by the Grand Justices, how long will we have to wait for them to be corrected?" he asks.
Chiu observes that the hearing of cases by the judiciary is a passive process. The executive and the legislature should more actively review and amend the law, and (as in European and American countries) human rights bodies should be set up within the legislature to actively examine whether legislation violates human rights and to survey major human rights incidents. Only then can various violations of the people's basic rights caused by inexperience in applying the Constitution be promptly set right.
A channel to justice
With the greater environment still some way from the ideal, is there any way in which members of the public not involved in a particular case can participate more actively in constitutional reform? Peng Tian-hao can serve as an example.
The case which resulted in the 1997 CGJ ruling that the ban on males eligible for military service traveling abroad was unconstitutional was brought forward by Chinese Culture University law student Peng Tian-hao on his own initiative. At the time Peng simply felt that the restriction was thoroughly unreasonable, so he "manufactured" a case himself: he submitted an application for foreign travel, and after it was rejected he made two appeals to the Ministry of the Interior, which he then took to the Administrative Court. When the court decided in the ministry's favor, Peng became eligible to petition for a constitutional interpretation, and a year later the Grand Justices finally made their ruling.
Peng, who is now studying at NTU's Graduate Institute of San Min Chu I, recently registered to stand for election to the Legislative Yuan, in order to challenge the regulation that students cannot stand for election.
"Don't think it's impossible-a just cause will prevail in the end," he says.
Seeking a constitutional interpretation really is a channel by which the people can obtain justice.
p.46
The provisions of the family law section of the Civil Code relating to guardianship rights have long been a focus of concern among women's groups. After the Council of Grand Justices declared the old wording unconstitutional, the Legislative Yuan finally amended the law. Pictured here is a street theater protest by a women's group. (photo by Hsueh Chi-kuang)
p.47
The Council of Grand Justices' power to interpret the Constitution is a major guarantor of human rights in the ROC. However, due to the long period of martial law, it is only in recent years that it has come to be widely used by citizens. (courtesy of the Secretariat of the Grand Justices)
p.48
Thanks to the efforts of Huang Chih-chia's father, the CGJ extended the constitutional right to human dignity to include the right to choose one's own name. Then Chih-chia was able to change his name to Chih-kai and escape the nickname "Yellow Fingernails."
The Taiwan Association for Human Rights has been involved with many petitions for constitutional interpretations. Pictured here is attorney Kenneth Chiu, the association's former chairman.
p.49
Twenty-one petitions submitted on his clients' behalf by attorney Chen Ching-hsiu have resulted in constitutional interpretations by the Grand Justices-almost one-20th of their total number of interpretations over 50 years.
Attorney Dagmar Yu of the women's group Awakening Foundation has long been working for legislative change. (photo by Hsueh Chi-kuang)
p.53
During the Period of Mobilization for Suppression of the Communist Rebellion, the Law Governing Police Offenses limited the people's rights of assembly and demonstration. In 1990 the Grand Justices declared the law unconstitutional, and it has now been replaced by the Statute for the Maintenance of Social Order. Pictured here is a demonstration in 1988 to protest the unconstitutional arrest of demonstrators during the "May 20 Incident."
p.54
On 20 November 1998, the Council of Grand Justices delivered the following constitutional interpretation: Citizens have the right to apply to the state for compensation for death, injury, property damage or financial loss caused by civil servants' dereliction of duty. In future, victims of disasters such as the Lincoln Mansions landslide will be able to gain assistance. (photo by Lu En-tsu)
Thanks to the efforts of Huang Chih-chia's father, the CGJ extended the constitutional right to human dignity to include the right to choose one's own name. Then Chih-chia was able to change his name to Chih-kai and escape the nickname "Yellow Fingernails.".
Twenty-one petitions submitted on his clients' behalf by attorney Chen Ching-hsiu have resulted in constitutional interpretations by the Grand Justices--almost one-20th of their total number of interpretations over 50 years. Attorney Dagmar Yu of the women's group Awakening Foundation has long been working for legislative change. （photo by Hsueh Chi-kuang）
Attorney Dagmar Yu of the women's group Awakening Foundation has long been working for legislative change. （photo by Hsueh Chi-kuang）
Breakdown of petitions to the Grand Justices.
During the Period of Mobilization for Suppression of the Communist Rebel lion, the Law Governing Police Offenses limited the people's rights of assembly and demonstration. In 1990 the Grand Justices declared the law unconstitutional, and it has now been replaced by the Statute for the Maintenance of Social Order Pictured here is a demonstration in 1988 to protest the unconstitutional arrest of demonstrators during the "May 20 Incident.".
On 20 November 1998, the Council of Grand Justices delivered the following constitutional interpretation: Citizens have the right to apply to the state for compensation for death, injury, property damage or financial loss caused by civil servants' dereliction of duty. In future, victims of disasters such as the Lincoln Mansions landslide will be able to gain assistance. （photo by Lu En-tsu）
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