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  • Interpretation
  • No.470
  • Date
  • 1998/11/27
  • Issue
    • Is the ROC President empowered to nominate and appoint the President, Vice President or Justices of the Constitutional Court, Judicial Yuan, whenever a vacancy arises before the year 2003 even though the Constitution, when amended in 1997, failed to make specific provision therefor?
  • Holding
    •        The Constitution as amended on May 28, 1992, provides in Article 13, Paragraph 1, that where vacancies of the office of the President, Vice President or the positions of the Justices of the Constitutional Court, Judicial Yuan, arise, the ROC President shall submit the names of nominees and, upon approval by the National Assembly, such nominees shall be appointed. Further, Article 79 of the Constitution and related regulations do not apply to such nominations and appointments, therefore, the Control Yuan has no right of approval. The ROC President, in accordance with the amended constitutional provision, nominated the President, Vice President and Justices of the Constitutional Court, Judicial Yuan, on separate occasions on April 2, 1993, and July 30, 1994, and these nominations were approved by the National Assembly. On August 1, 1994, the abovementioned provision was amended to Article 4, Paragraph 1. On July 21, 1997, the provision was further amended and became Article 5, Paragraph 1, specifically providing that the law shall be effective from 2003. Therefore, prior to 2003, there are no mechanisms available for the nominations of the President, Vice President and Justices of the Constitutional Court, Judicial Yuan. Where inability to fill vacancies arises in respect of the offices of the President, Vice President and Justices of the Constitutional Court, prior to 2003, which will affect the normal operations of the Judicial Yuan, what are the procedures to be taken? As the current Constitution does not specifically provide, due to omissions when amending the Constitution, the nomination by the ROC President of these positions shall be carried out in accordance with Article 4 of the Constitution as amended on August 1, 1994.
  • Reasoning
    •        The Second National Assembly on May 28, 1992, announced amendments to the Constitution, in particular, Article 13, Paragraph 1, dealing with the nomination of the President, Vice President and Justices of the Constitutional Court, Judicial Yuan, during the Third National Assembly on July 21, 1997. The provision was further revised and became Article 5, Paragraph 1, providing that the Judicial Yuan shall have 15 Justices with 1 President and 1 Vice President, all of whom shall be nominated by the ROC President and approval by the National Assembly, but was not subject to the restrictions of Article 79 of the Constitution. In the amendment to the Constitution announced on August 1, 1994, the relevant provision became Article 4, Paragraph 1, “nominated by the ROC President and approved by the National Assembly.” The amendment shall take effect from 2003 and shall not be subject to the applicability of Article 79 of the Constitution.    It is clear from the amendment that the content of the provision has been altered significantly, in particular, in the number of Justices and the effective year of 2003. Prior to 2003, the amended provision has no applicability in relation to the selections of the President, Vice President and Justices of the Judicial Yuan.  The current President of the Judicial Yuan, and the nominee for the currently vacant position of Vice President of the Judicial Yuan were respectively nominated by the ROC President on July 30, 1994, and April 2, 1993, pursuant to Article 13, Paragraph 1, of the Constitution as amended and in effect at the time and approved by the National Assembly. Therefore, the President and Vice President of the Judicial Yuan are not required to hold the position of Justice. The term of the Sixth Justices, according to the Organic Act of Judicial Yuan, Article 5, Paragraph 2, shall be 9 years, expiring in October 2003. During the transition period, if vacancies arise in the offices of the President, Vice President or the positions of the Justices, what are the mechanisms for their selection? The Constitution as amended in 1997 does not expressly provide an answer in Article 5, although Article 79 expressly provides that the Control Yuan has the right to approve the ROC President*s nominations of the President, Vice President or Justices, following the promulgation of the amendments to the Constitution in 1992, in particular, Article 13. The Control Yuan no longer holds such right, as with the rights provided in Article 7, Paragraph 1, of the Constitution, which are no longer applicable. Further, Article 79 has no applicability in relation to the nominations of the President, Vice President or Justices of the Judicial Yuan.  The original legislative intent of the current Article 5 of the Constitution was that the newly appointed Justices shall succeed the current Justices following the expiration of the current term in October 2003. However, if vacancies do arise during this interim period, hindering the regular duties of the Judicial Yuan, the process of the nominations to fill the vacancies should follow Article 4 of the 1994 amended Constitution. The failure to provide specifically for such contingency in the current Constitution in Article 5 is a legislative omission and therefore, the nominations of the President, Vice President or Justices, Judicial Yuan, by the ROC President should be carried out pursuant to Article 4 of the Constitution as amended on August 1, 1994.  
      
    • *Translated by BAKER & McKENZIE.
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