Case News

The TCC delivers its Judgment 112-Hsien-Pan-11 (2023)

    TAIPEI, October 6, 2023. The Taiwan Constitutional Court (TCC) delivered its Judgment of the “Case on Phantom Voters/ False Census Registration to Alter the Composition of an Electorate” on July 28, 2023.

Principal Facts, Issues, and Procedure of the Case
 

    Article 146 of the Criminal Code stipulates: “A person who by fraud or other illegal means procures an incorrect result from voting or alters election returns shall be sentenced to imprisonment for not more than five years (Paragraph 1). A person who with purpose to render a candidate elected falsely makes census registration to obtain the right to vote and votes shall be subject to the same punishment (Paragraph 2, added in 2007). An attempt to commit an offense specified in one of the two preceding paragraphs is punishable (Paragraph 3).” The specific act punishable by Article 146, Paragraph 2 of the Criminal Code is generally called “Phantom Voter” in Taiwanese society. 

    There were five consolidated petitions filed by a conjoined 20 petitioners in this case. Under the intention of getting certain candidates elected, the petitioners either (1) conducted false census registrations to obtain the voting rights of certain electorate, later voted on voting day; (2) conducted false census registration to obtain voting rights of certain constituent but failed to vote; or (3) were complicit in false registration. The petitioners were all prosecuted and found guilty finally in their respective criminal cases under the provisions in Article 146 of the Criminal Code. 

    The petitioners lodged constitutional complaints, arguing that (1) Article 146, Paragraphs 1 and 2 of the Criminal Code (hereinafter “Provision I” and “Provision II”) infringe the people’s freedom of movement and right to vote; (2) “other illegal means” in Provision I is not clear in terms of its constituent elements, which consequently violates the principle of rule of law; (2) Provision II violates the principle of proportionality, the principle of clarity and definiteness of law (Rechtsbestimmtheitprinzip), and the equality principle, consequently infringes people’s right to vote, freedom of movement and right to equality; (3) Article 146, Paragraph 3 of the Criminal Code (hereinafter “Provision III”) where the attempted crime of Provision 2 is punishable, is illegitimate and violates the principle of nullum crimen, nulla poena sine lege certa (principle of legal certainty in criminal law); and (4) additionally, Petitioner VIII (group of persons led by Hui-Tzong Liu) also argued that their final court decision, Supreme Court Judgment 111-Tai-Shang-1861 (2022), is unconstitutional. 

    The cases were consolidated and argued on April 11, 2023. Judgment 112-Hsien-Pan-11 was announced by the Court en banc at 3 p.m. on July 28, 2023. Justice Tzung-Jen TSAI wrote Part One and Part Six of this Judgment; Chief Justice Tzong-Li HSU wrote Part Two and Part Four; Justice Tai-Lang LU wrote Part Five. Justice Horng-Shya HUANG (joined by Justice Jeong-Duen TSAI, Justice Ming-Cheng TSAI, Justice Chih-Hsiung HSU, and Justice Ming-Yan Shieh), Justice Chih-Hsiung HSU (joined by Justice Ming-Cheng TSAI), Justice Jui-Ming HUANG, and Justice Tai-Lang LU each filed a concurring opinion. Justice Jiun-Yi LIN (joined by Justice Chong-Wen CHANG and Justice Tzung-Jen TSAI), Justice Sheng-Lin JAN, Justice Jau-Yuan HWANG, Justice Tzung-Jen TSAI (joined by Justice Jiun-Yi LIN, Justice Chong-Wen CHANG, and Justice Hui-Chin YANG) each filed an opinion dissenting in part.  

Decision of the Court
 

    The TCC upheld the constitutionality of the disputed provisions, but decided to quash Supreme Court Judgment 111-Tai-Shang-1861 (2022) and referred the matter back to the Supreme Court.

    In its reasoning, the TCC ruled the disputed Provision I does not violate the principle of nullum crimen, nulla poena sine lege certa, as the constituent elements of the crime are foreseeable and deducible. 

    Furthermore, the TCC ruled that Provision II concerns extra important government interest, imposes the least restrictive means, and is proportionate in terms of the interest protected and rights restricted. The TCC also ruled that Provision II did not create an unreasonable differential treatment between the candidates and the voters when they were both changing their census registrations for the election. In conclusion, the TCC ruled that Provision II does not violate the right to vote, the right to equality, and the principle of nullum crimen, nulla poena sine lege certa. 

    In terms of Provision III where the attempted crime of Provision II is punishable, the TCC ruled that it does not violate the principle of proportionality and the principle of punishment fitting to the crime. The TCC pointed out that once a person has registered falsely, it amounts to the commencement of the crime and is highly probable for the person to vote later. Punishing the attempted crime of Provision II is related substantially to its purpose. 

    However, the TCC pointed out that Petitioner VIII’s final court decision, Supreme Court Judgment 111-Tai-Shang-1861 (2022), failed to recognize that the petitioners had been working at that specific electorate for more than twenty years and should have had the legitimate reason to vote even they did not live there per se. For this reason, TCC has decided to quash said decision.  

Notes:

1. Full texts of the Judgment and Opinions are available on the TCC website here (Traditional Chinese). An English summary of this Judgment will be available later on the TCC English website.
2. The TCC’s Case News is prepared by the Department of Clerks for the Constitutional Court (Judicial Yuan) for information only and does not bind the Court. 
3. In case of any conflict of meaning between the Traditional Chinese version and the translated English version, the Traditional Chinese version shall prevail.