According to the subject argument of this petition, it was during the disposition of a child protection and placement case, Taiwan Miaoli District Court Year 90 Protection No.31, that the petitioner asserted with assurance that the applied Article 16 and its related Article 15, Section 2, of the Law to Suppress [Prohibit?] the Sexual Exploitation of Children and Juveniles contravened Articles 8 and 23 of the Constitution, and thus petitioned for judicial interpretation pursuant to Interpretation No.371 of the Judicial Yuan. However, in order to avoid placing the protected party at a disadvantage, the judge made the final decision on the case before this petition, thus requiring a supplementary elaboration on Interpretation No. 371 as to whether it is a mandatory prerequisite to suspend the litigation procedure before petition. This Yuan, in handling the petition, considers it necessary to add a supplementary elucidation to Interpretation No.371 on the involved procedural issue.
According to Judicial Interpretations Nos.371 and 572 of this Yuan, during the disposition of a case, if the presiding judge of any court instance suspects with reasonable assurance that an applicable statute may contravene the Constitution, he or she shall make it a prerequisite issue to suspend the litigation procedure and provide concrete reasoning of his or her objective belief on its unconstitutionality so as to petition to the Grand Justices of this Yuan for a judicial interpretation, the purpose of which is to exempt a judge from the dilemma of upholding the Constitution and applying the law, on the one hand, and preventing the waste of judicial resources on the other. The term “during the disposition of a case” denotes all criminal, administrative, civil and non-trial cases. Hence, “to suspend the litigation procedures” refers to suspension of all trial and non-trial cases. On the petition for judicial interpretation, a judge must order the suspension of the litigation procedure, for under Article 78 of the Constitution and Article 5, Section 4, of the Supplementary Provisions to the Constitution, it is the exclusive authority of the Grand Justices of the Judicial Yuan to resolve questions on the constitutionality of a law. Under Article 80 of the Constitution, judges of all court instances shall dispose of cases independently, according to law, yet this does not embrace the power to declare a law unconstitutional and thus refuse to apply it. Therefore, during the disposition of a case, if the presiding judge, based on his or her own reasonable assurance, suspects that an applicable statute may contravene the Constitution and thus considers it necessary to petition for judicial interpretation, the litigation procedure is then on no ground to continue, or it will permit the judge to employ a law, which has been assumed to have violated the Constitution, and thus will infringe upon the principle of rule of law under which a judge shall decide a case under legitimate law, which has been assured by Judicial Interpretations Nos.371 and 572. Hence, it is a mandatory prerequisite course of action for a judge to suspend the trial or non-trial procedure to petition for judicial interpretation.
Article 16 of the Constitution guarantees people the right to litigation, the purpose of which is to enable people to secure their legal rights authentically and punctually. State organs are thus obliged to render institutional shields for effective relief. During the disposition of a case where a trial or non-trial procedure may have been suspended on legal grounds, the residing judge, in an urgent situation, shall not close the case by making a final judgment, but shall take necessary measures for the protection of people’s rights and public interests. After the presiding judge suspends a trial or non-trial procedure to petition for judicial interpretation, the involved case is barred from proceeding, so in urgent circumstances, a judge shall look into the legislative purposes, balance the rights and welfare of the parties with the public interests, and consider all relevant matters of the case so as to safeguard, protect or take other appropriate measures in line with the Constitution and the above-cited Interpretations. Further, to ensure the appropriateness of such measures, the parties and interested persons of a case shall be given opportunities to express their opinions regarding the case before any measures are taken. The parties and interested persons may certainly seek relief against the measures under relevant procedural laws. The so-called urgent circumstances that deserve appropriate measures may include the following: In order to safeguard any evidence from possible obliteration, the judge shall instigate a necessary investigation; when a criminal suspect is detained but the time limit for legal detention is about to expire, the judge shall prolong the duration of detention or take other appropriate measures according to Article 108 of the Criminal Procedure Law, or in the case of what is provided in Article 114, Paragraph 3, the judge shall order a release on bail.
We now consider the concerned Article 16 of the Law to Suppress the Sexual Exploitation of Children and Juveniles in the present case. An authority by law shall place a child or a juvenile involved in, or at risk of being involved in, sexual exploitation at its Emergency Accommodation Centre pursuant to Article 15, Section 2, of the Law. If the Centre, within 72 hours of the placement, submits a report to the court for an order (to continue the placement), while the court, which questions the constitutionality of the legally specified 72-hour placement and its related provisions in the Law, thus orders the suspension of the procedure according to Interpretations Nos.371 and 572 of this Yuan and petitions for judicial interpretation, then before an Interpretation is made by this Yuan, the court is not empowered to apply Article 16, Section 2, of the Law to release the placed child or juvenile, nor can the court entrust the child or juvenile to the authority to place in a short-term accommodation centre or other appropriate place, consequently depriving the parent or guardian of his or her custodial right, or failing to secure personal freedom and other procedural rights of the child or juvenile. In such exceptional circumstances, the judge, when ordering suspension of the non-trial procedure, should take appropriate measures, including returning the child in question to the custody of the parent or guardian, or, where the family is considered unfit, referring the child or juvenile to a suitable social welfare institution for guidance and nurturance. Interpretations Nos.371 and 572 of this Yuan shall be supplemented as above.
To conclude, during the disposition of a case, when there are questions on the constitutionality of an applicable law, a judge may petition to this Yuan for judicial interpretation according to Interpretations Nos.371 and 572. However, such a petition can only be made while the case is heard and the procedure remains in course, otherwise a judicial interpretation on the constitutionality of such law will cease to be a prerequisite for deciding the concerned case. The present petition is based on the child protection and placement case, Taiwan Miau-Li District Court Year 90 Protection No.31, in which the applicant judge had applied Article 16, Section 2, of the Law to Suppress [Prohibit?] the Sexual Exploitation of Children and Juveniles to make his final decision, so the case is no longer pending. Consequently, the petition for a judicial interpretation on questions over the constitutionality of Article 9 and Article 15, Section 2, of the Law does not meet the requirements set by the abovementioned Interpretations and should therefore be rejected.
*Translated by Professor Dr. Amy H.L. SHEE.