In-Depth Report on the TCC 2023 Constitutional Law Forum
Written by Research Judge Szu-Fan Chen
Originally published in the Judicial Weekly No.2175
Summarized and Translated by Secretary Tai-Chun Kuo
On September 18, on the occasion of the International Association of Judges (IAJ) hosting the 65th Annual Meeting and the 70th Anniversary of the IAJ in Taipei during September 16-21, 2023, the TCC and the Judges Association of the ROC (Taiwan) co-hosted the Constitutional Law Forum.
The forum speakers at this event include: The Right Hon. Lord Carloway (Lord President of the Court of Session and Lord Justice General of Scotland), The Hon. Dame Susan Glazebrook (Justice of the Supreme Court of New Zealand, Immediate Past President (ex officio) of the International Association of Women Judges), Hon. Dr. Jau-Yuan HWANG (Justice of the Taiwan Constitutional Court), Professor Dr. Dainius Žalimas (Former President of the Constitutional Court of Lithuania and Dean of the Faculty of Law at the Vytautas Magnus University), President José Igreja Matos (Then President of IAJ, currently the Honorary President of the IAJ), Hon. Allyson Duncan (VP of IAJ, President of the ANAO group), Judge Krystian Markiewicz (President of the Polish Judges Association Iustitia), and Mr. Ilwon Kang (Former Justice of the Constitutional Court of Korea).
Under the forum theme of “Judicial Independence and Constitutionalism,” the TCC invited all the esteemed speakers to discuss the following sub-themes: (1) Judicial Independence from Other State Powers; (2) Judicial Independence from Judicial Administration; (3) Judicial Independence from Social Pressure; and (4) Judicial Independence and Freedom of Expression.
Opening Remark: Reexamining the Value and Challenges of Judicial Independence
President of the Judicial Yuan and Chief Justice of the TCC, Dr. Tzong-Li HSU, opened the forum by welcoming all participants worldwide to join the event. Under the topic “Judicial Independence amid Challenges: From the Perspective of Constitutionalism”, Chief Justice HSU elaborated on the normative functions of judicial independence. He ended his opening remark by wishing the exchanges at the forum may transcend the borders even after the event. Chief Justice HSU also hoped that the connections the forum has facilitated and Taiwanese judiciaries’ endeavor to promote judicial independence would ultimately create a positive normative cycle to shape the global legal community.
First Speech: Judicial Independence and Judicial Participation in Policy
The first forum speech was brought by Lord Carloway (Lord President of the Court of Session and Lord Justice General of Scotland) under the title “The Relationship between Judicial Independence and Judicial Participation in Policy and Law-Making”
Drawing from past experiences and recent developments in Scottish courts, Lord Carloway pointed out that, when exercised within proper bounds, judicial independence may be manifested and reinforced by judicial participation in policy and law-making. Lord Carloway emphasized that “members of the judiciary are duty-bound to uphold fundamental legal policy, the rule of law and the proper administration of justice” through their decisions. Lord Carloway concluded his speech by stressing that tensions arisen between the judiciary and other state branches are inherent in any system that contains appropriate checks and balances, and that a nation in which the separate branches never disagree is unlikely to be one with an independent judiciary—thus, not a place people would want to live in.
Second Speech: Judicial Independence and the Society
The second forum speech was brought by The Hon. Dame Susan Glazebrook (Justice of the Supreme Court of New Zealand, Immediate Past President (ex officio) of the International Association of Women Judges) under the title “Peeking Beneath the Blindfold: Responsive to Society or Caving to Pressure?”
With references from the policy development and jurisprudence of the Supreme Court of New Zealand/Te Kōti Mana Nui o Aotearoa, Justice Glazebrook mentioned that the judiciary should be open-minded in facing public criticism, whilst being cautious of whether the criticism is excessive to the extent that it threatens judicial independence and public confidence. Justice Glazebrook further emphasized that it is essential for judges to be reflective of the community in order to judge fairly and uphold the value of equality. Justice Glazebrook ended her speech by emphasizing that the ability of courts to be responsive and innovative as well as courageous in facing major challenges—including artificial intelligence, climate change, and threats to the rule of law—will be more important than ever.
Third Speech: The Balance between Democracy and Ideals of Constitutionalism
The third forum speech was brought by Hon. Dr. Jau-Yuan HWANG (Justice of the Taiwan Constitutional Court) under the title “Hard Cases before the Constitutional Court: Balance between Leading and Following the Majority.”
By looking into the legal techniques employed in Taiwan Constitutional Court’s declaration of unconstitutionality, Justice HWANG tried to answer the question of how to strike a delicate balance between judicial independence and democratic ideals, in other words: “Should the Court stick to the constitutional principles? Or, should the Court defer to the will of the majority?”
Justice HWANG noted that constitutional review is not a matter of pure judicial nature. He emphasized that by employing weaker forms of decision, including “warning of invalidation,” “simple declaration of unconstitutionality,” “suspended declarations of invalidity,” “judge-made law as fallback remedy” and other devices, more public debates may be encouraged and could allow the democratic mechanism to develop solution to hard cases. Justice HWANG concluded that, between following the will of majority and leading the society with the Courts’ ideals, the Constitutional Courts or Supreme Courts have the institutional potential to strike a more nuanced balance between constitutionalism and democracy.
Fourth Speech: How the Constitutional Court Safeguards Judicial Independence
The fourth forum speech was brought by Prof. Dr. Dainius Žalimas (Former President of the Constitutional Court of Lithuania and Dean of the Faculty of Law at the Vytautas Magnus University) by pre-recording under the title “Constitutional Justice and Society’s Reaction: Tension or Reinforcement?”
Through references to Lithuania’s experience of constitutional justice, Professor Žalimas ventured into the role of the Constitutional Court in its relationship with the society. He shared the view that the Constitutional Court is a body of judicial power, which is obliged to follow the Constitution by ensuring continuity, consistency, and predictability of its jurisprudence. Professor Žalimas stressed that the proper implementation of the Constitutional Court’s mission would strengthen the public’s confidence in the Court—so long as the public see that the Constitutional Court adopts its decisions strictly in accordance with the Constitution and not following the political conjuncture, the Court will not lose public confidence even if some of its decisions may not be popular. Professor Žalimas concluded his speech by pointing out that the tension between constitutional justice and society may be transformed into mutual reinforcement under the key instruments of judicial activism and devotion to defending the Constitution.
Fifth Speech: The Essence of the Freedom of Expression of Judges
The fifth speech was brought by President José Igreja Matos (Then President of the IAJ) under the title “Freedom of Expression of Judges Walking on the Line.”
President Matos started his speech by raising awareness of the new global trend of decay of Rule of Law and recent attacks on the independence of the judiciary in several populist and autocratic countries. President Matos pointed out that in general, the limitations imposed on judges’ freedom of expression are substantial, and it is hard for them to achieve equilibrium. In view of recent disastrous state of affairs, and adding the fact that technological development and the rise of social media have increased the complexity, President Matos pointed out that a cautious interpretation of the limitations on the freedom of speech of judges is required.
President Matos stressed that judges’ freedom of expression is imperative in the fight to affirm civilizational values. He noted that it is both a right and a duty for judges to communicate via whatever platforms with the recipient of their works, which are their fellow citizens.
Sixth Speech: The Threats and Challenges to Judicial Independence
The sixth speech was brought by Hon. Allyson K. Duncan (US Circuit Court Judge (ret.) and Vice President of the IAJ) under the title “The Changing Nature of Threats to Judicial Independence: The Pandemic, Populism, and the Loss of Faith.”
Judge Duncan started her speech by mapping the inter-related international threats to the Rule of Law caused by the Pandemic, the worldwide populist sentiment, and the loss of faith in the judiciary. Judge Duncan also raised awareness of the continuous backsliding of key governance factors such as constraints on government powers, civic space, timeliness of justice, etc. In quoting words from Former Justice Stephen Breyer of the US Supreme Court “Trust in the Court, without which our system cannot function requires knowledge, it requires understanding, it requires engagement—in a word, it requires work”, Judge Duncan offered a ray of hope that working on education and understanding may ameliorate the situation.
Seventh Speech: The Independence of the Constitutional Court
The seventh speech was brought by Judge Professor Dr. Krystian Markiewicz (President of the Polish Judges Association Iustitia) under the title “The Constitutional Court—an Independent Tribunal or a Political Body?”
Looking into the history of the birth of the constitutional courts in Europe after WWII, Judge Markiewicz pointed out that the important function of safeguarding individual’s rights and freedom against tyranny of the majority often made the constitutional courts the first victims of the expansion of political tyranny. Judge Markiewicz criticized the recent developments in Poland, where political powers intervened and transformed the constitutional court into a political body that rubber-stamps blatantly unconstitutional laws of the ruling party. Judge Markiewicz further offered some suggestions on how to prevent the constitutional courts from becoming a “politicized” tribunal, including bettering the judge selection process and complementing the central constitutionality control with diffused constitutionality control by other independent courts. He ended his speech by offering his wishes for all citizen’s rights to be safeguarded by the judges.
Eighth Speech: The Development and Expectations of Judicial Independence in Korea
The eighth speech was brought by Mr. Ilwon Kang (Former Justice of the Constitutional Court of Korea) under the title “Strengthening Judicial Independence in Korea.”
In his speech, Former Justice Kang offered the audience a brief yet comprehensive introduction to the development of the judiciary and judicial independence in Korea. He mentioned past reforms and major cases on judicial independence in relation to other state powers, judicial administration, social pressure, and freedom of expression. Former Justice Kang concluded his speech by referring to the efforts for internal independence of the judiciary and pointed out that the shift of attention from judicial independence to judicial liability means that judicial independence in Korea has been strengthened significantly.
Closing Remark: Forming Transnational Bonds in the Judiciary
Forum Chair Chief Justice Tzong-Li HSU delivered the closing remarks of the 2023 Constitutional Law Forum by giving a summary of the main points of each forum speech from the perspective of history, the global aspect, and comparative studies. Chief Justice HSU pointed out that while the judiciary is resilient in maintaining its independence, it cannot create the impression that it is out of touch.
Chief Justice HSU concluded the forum by inviting all participants to protect judicial independence and fundamental rights in their respective courts since, in this forum, all judges have confirmed that they are not alone.
The half-day 2023 Constitutional Law Forum ended as a big success with participants from different countries exchanging dialogues and sharing experiences with each other throughout the event.