This application for judicial interpretation was submitted pursuant to the provisions set forth in Article 1, Paragraph 1, Subparagraph 1, of the Law of Interpretation Procedure for Grand Justices by the Secretary of the President on behalf of the President upon the President’s instruction. The applicant for this judicial interpretation is the President rather than the Secretary of the President, and this is hereby clarified accordingly.
The first part of Article 5, Paragraph 1, of the Amendments to the Constitution (amended on April 25, 2000) provides that the Judicial Yuan shall consist of 15 Grand Justices and the President shall nominate, with the consent of the Legislative Yuan, one Grand Justice to be the President of the Judicial Yuan and another Grand Justice to be the Vice (Deputy) President of the Judicial Yuan. This part of the Amendments shall be implemented in 2003 and shall be exempted from the prescription set forth in Article 79 of the Constitution. However, the aforementioned part of the Amendments fails to provide an appointment procedure if vacancies occur due to resignation or other reasons before the expiration of the 2003 legislative term. The President of the Judicial Yuan, the Vice (Deputy) President of the Judicial Yuan and the Grand Justices are authorized by the Constitution and its Amendments and are empowered by Article 78 of the Constitution, Article 5 of the Amendments to the Constitution and Articles 3 and 8 of Organic Law of the Judicial Yuan. The President of the Judicial Yuan, the Vice (Deputy) President of the Judicial Yuan and the Grand Justices are part of the constitutional system. To maintain the integrity of the constitutional system, the appointment procedure must be expressly prescribed in the law. The Grand Justices of the Judicial Yuan are responsible for providing a constitutional interpretation pursuant to the first part of Article 5, Paragraph 1, Subparagraph 1, of the Law of Interpretation Procedure for Grand Justices based upon which the legislature can revise this part of the Amendments in accordance with the legislative intent of the Constitution.
Article 79 of the Constitution provided that the President shall nominate, with the consent of the Control Yuan, the President of the Judicial Yuan, the Vice (Deputy) President of the Judicial Yuan and the Grand Justices. At the time Article 79 of the Constitution was enacted, the Control Yuan exercised the power of consent or veto in accordance with the will of the people. However, during the second term of the National Assembly, Article 13, Paragraph 1, of the Amendments to the Constitution (amended on May 28, 1992) was amended to provide that the President shall nominate, with the consent of the National Assembly, the President of the Judicial Yuan, the Vice (Deputy) President of the Judicial Yuan and the Grand Justices. Therefore, Article 79 of the Constitution was no longer applicable. After Article 13, Paragraph 1, of the Amendments was implemented, the Control Yuan lost the power to consent to or veto the nomination of candidates for the positions of President of the Judicial Yuan, Vice (Deputy) President of the Judicial Yuan and the Grand Justices made by the President. Later during the same term of the National Assembly, Article 13, Paragraph 1, of the Amendments to the Constitution (amended on August 1, 1994) became Article 4, Paragraph 1, of the Amendments to the Constitution. During the third term of the National Assembly, the content of Article 4, Paragraph 1, of the Amendments to the Constitution was again amended and it then became Article 5, Paragraph 1, of the Amendments to the Constitution, which provided that the Judicial Yuan shall consist of 15 Grand Justices and the President shall nominate, with the consent of the National Assembly, one Grand Justice to be the President of the Judicial Yuan and another Grand Justice to be the Vice (Deputy) President of the Judicial Yuan. This part of the Amendments shall be implemented in 2003 and shall be exempted from the prescription set forth in Article 79 of the Constitution. Subsequently, this part of the Amendments was once again amended to provide for the removal of the power of consent or veto from the National Assembly and to transfer it to the Legislative Yuan. From the numerous revisions of this part of the Amendments to the Constitution, it is clear that while the nomination of the President of the Judicial Yuan, the Vice (Deputy) President of the Judicial Yuan and the Grand Justices falls within the executive power of the President, the power of consent or veto shall be exercised by a government agency in accordance with the will of the people. This is the legislative intent of the Constitution and its Amendments.
By amending several Amendments to the Constitution, the third term of the National Assembly made substantial changes in the establishment and authority of the National Assembly itself. Besides specifying the authority of the National Assembly in Article 1 of the Amendments to the Constitution, the election of the National Assembly Representatives and the meeting of the National Assembly were strictly limited to the prescribed authority set forth in Article 1 of the Amendments to the Constitution. The National Assembly also amended Article 5, Paragraph 1, Article 6, Paragraph 2, and Article 7, Paragraph 2, of the Amendments to the Constitution to remove the power of consent or veto of the nomination of candidates for the positions of President of the Judicial Yuan, Vice (Deputy) President of the Judicial Yuan, the Grand Justices, President of the Examination Yuan, Vice (Deputy) President of the Examination Yuan, the Commissioners of the Examination Yuan, President of the Control Yuan, Vice (Deputy) President of the Control Yuan, and the Commissioners of the Control Yuan from the National Assembly and transfer it to the Legislative Yuan. As a result, after the aforementioned Amendments to the Constitution were implemented, the National Assembly lost the power to consent to or veto the nomination of candidates for the positions of President of the Judicial Yuan, Vice (Deputy) President of the Judicial Yuan, and the Grand Justices made by the President. Therefore, it was no longer necessary to hold an election of National Assembly Representatives and a meeting of the National Assembly to exercise the power of consent or veto. In considering the integrity of the Constitution and its Amendments, if vacancies occur due to resignation or other reasons before the expiration of the 2003 legislative term, the President shall nominate, with the consent of the Legislative Yuan, the President of the Judicial Yuan, the Vice (Deputy) President of the Judicial Yuan and the Grand Justices, and this is consistent with the principle that a democracy is legitimate only if it is based upon the will of the people. The power of consent or veto set forth in the Constitution and its Amendments was designed to implement this legislative intent. After the power of consent to or veto of the nomination of candidates for the positions of President of the Judicial Yuan, Vice (Deputy) President of the Judicial Yuan, and Grand Justices made by the President has been removed from the National Assembly and transferred to the Legislative Yuan, this power of consent or veto shall be exercised by the Legislative Yuan. As a result, if vacancies occur due to resignation or other reasons before the expiration of the 2003 legislative term, which adversely affect the normal operation of the Judicial Yuan, the President shall nominate, with the consent of the Legislative Yuan, the President of the Judicial Yuan, the Vice (Deputy) President of the Judicial Yuan and the Grand Justices.
*Translated by Li-Chih Lin, Esq., J.D.