Case News

The TCC delivers its Judgment 113-Hsien-Pan-9 (2024)

    The Taiwan Constitutional Court (TCC) delivered its judgment on the "Case on the Constitutionality of the Amendments to the Law Governing Legislative Yuan's Power and the Criminal Code" (TCC Judgment 113-Hsien-Pan-9) on October 25, 2024.

Facts, Issues, and Procedure of the Case

    On May 28, 2024, the Legislative Yuan passed the amendment bill to the Law Governing Legislative Yuan's Power (hereinafter "LGLYP") and the Criminal Code. The bill amends to forty-three articles of the LGLYP and one article of the Criminal Code. The amendments mainly expanded or strengthened the Legislative Yuan's functions in hearing the President's State of the Nation Report, conducting interpellations, setting up investigation committees or taskforces, and holding congressional hearings. The Executive Yuan deemed some of the provisions unfeasible requested the Legislative Yuan to reconsider the amendment bill. On June 21, 2024, the Legislative Yuan upheld the original bill by majority vote in a plenary session, denying the Executive Yuan's request to reconsider. The newly amended provisions were thus implemented on June 26, 2024. 

    Fifty-one members of the Legislative Yuan (all from the Democratic Progressive Party, which is a minor party of the 11^th Legislators but the ruling party in the executive branch) believed that the amendment bill was unconstitutional because of its violation of the separation of powers and its flaws in the legislative process. The legislators filed a petition with the TCC as (Group) Petitioner I on June 26, 2024. The Executive Yuan, President Lai Ching-te, and the Control Yuan each filed a petition challenging the constitutionality of the amendments in their competence as Petitioners II, III, and IV. The petitioners also motioned the TCC for a preliminary injunction to suspend the implementation of the amendments. 

    On July 10, 2024, the TCC ordered a preliminary injunction to suspend the implementation of the amended provisions, citing the protection of fundamental rights of the people and the avoidance of irreparable harm to the public interest. The petitions were consolidated and later argued on August 6, 2024. Justice Tzung-Jen TSAI authored this judgment. One concurring opinion, five opinions concurring in part and dissenting in part, and three opinions dissenting in part were filed.

Decision of the Court

    The decision of the TCC in this case can mainly be summarized into seven major aspects. 

    The first aspect concerned the constitutionality of the amendments' legislative process:

1. The TCC upheld the constitutionality of the amendments' legislative process. The TCC referred to the legislative records and found that the process, although flawed for its disorderly during deliberation, it did not fundamentally compromise the amendment's legality, which must be based on requirements of transparency and democratic deliberation. 

    The second aspect addressed the constitutionality of requiring the President to deliver a State of the Nation Report and answer inquiries from the legislators upon request: 

1. The TCC ruled Article 15-1, Paragraph 1 of the LGLYP (provisions mentioned hereafter are all from this law unless specified otherwise), which stipulated that the Legislative Yuan may invite the President to deliver a State of the Nation Report, constitutional so long as the invitation is not interpreted as a constitutional obligation that can be imposed on the President. 
2. The TCC declared Articles 15-1 (Paragraphs 2 and 3), 15-2 (Paragraphs 1 and 2), and 15-4 unconstitutional. The provisions are unconstitutional because they permit the Legislative Yuan to assign topics for the President's State of the Nation Report. This requirement exceeds the Legislative Yuan's competence. 

    The third aspect concerned the constitutionality of the LGLYP amendments to strengthen the interpellation power of the legislature towards the executive branch: 

1. The TCC upheld the constitutionality of Article 25, Paragraph 1, which prohibits the conduct of "counter-interpellation" (literally as answering the question with another question). The TCC ruled that the provision is constitutional so long as the term "counter-interpellation" is interpreted as the interpellated evading the interpellation by posing his or her own question(s), reversing his or her position into the interpellator. 
2. Article 25, Paragraphs 2 and 4, which largely added extra duties to the interpellated and extra power to the chairperson of the interpellation session, were declared partly unconstitutional. The TCC pointed out that the provisions were regulations made unitarily by the legislature to decide the scope of duties of the interpellated (ministers or president of the executive branch), which overstepped legislature boundaries under the Constitution. In addition, Paragraph 3 of the same article was also declared unconstitutional for giving the legislature too much power to decide on the mandatory attendance of the interpellated. 
3. The TCC declared Article 25, Paragraphs 5, 6, 7, 8, and 9 unconstitutional for overstepping the Legislative Yuan’s constitutional competence. The officials attend the interpellation held by the Legislative Yuan to fulfill their political accountability enshrined in the Constitution rather than their legal duty. Therefore, the legislative provisions (Paragraphs 5, 6, 7) that impose fines or penalties to compel an official to attend and answer the interpellation overstep the constitutional boundaries of executive power. Likewise, the legislative provision (Paragraph 8) that enables the Legislative Yuan to initiate the impeachment or disciplinary proceedings against the interpellated officials expands the legislative power beyond its constitutional competence. The TCC declared these paragraphs cease to be effective immediately. 

    The fourth aspect concerned the constitutionality of the LGLYP amendments to strengthen the Legislative Yuan's power in consenting on the appointment of Presidents and Vice Presidents of the Judicial Yuan and the Control Yuan, members of the Control Yuan, and the Justices of the Constitutional Court (hereinafter "nominees"): 

1. The TCC stressed that the Legislative Yuan may decide ex officio, the procedures and ways to vet the nominees. However, since the legislature’s vetting power is subsidiary to its consenting power under the Constitution, it shall not overstep the latter's scope of authorization. In other words, other than approving or denying the nomination, the Legislative Yuan does not have the power to set up specific duties or administrative fines for individual nominees.
2. The TCC found the internal rules (Article 29 Paragraph 3, Article 30-1 Paragraph 1 and the First Sentence of Paragraph 2) and necessary requirements for exercising the consenting power (Article 29-1 Paragraph 3, Article 30 Paragraph 1) constitutional. The legislators may vet the nominees under these rules. 
3. The TCC ruled that Article 29-1, Paragraphs 1 and 2, which require the nominating agencies to send nominee qualifications and the nominees to answer written inquiries, are constitutional so long as the request for written responses for qualification-related questions are voluntary; and individual legislators (or party caucuses) do not have the power to direct inquiries to the nominees. 
4. The TCC declared the provisions (Article 29-1 Paragraph 3, Article 30 Paragraph 3, Article 30-1 Paragraph 3 and the Second Sentence of Paragraph 2) regarding imposing fines on the nominees shall cease to be effective immediately. These provisions mainly require the nominees to sign an affidavit stating the truthfulness of their statements and the integrity of the documents provided. Under these provisions, the nominees would be subject to fines if the plenary sitting determines by majority that they provided false statements or concealed information. It should be noted that the provision related to requiring the nominees to assure the authenticity of their documents by signing affidavits was not found unconstitutional. The TCC states that the rest were unconstitutional because nominees should not be required to vouch for their professional or evaluative statements, as they are not factual ones that could be proven truth. 

    The fifth aspect concerned the constitutionality of the LGLYP amendments to strengthen the Legislative Yuan's ex officio investigative powers:

1. Per J.Y. Interpretation No.585, investigative power serves as a subsidiary power for the Legislative Yuan to exercise its competence. The matters to be investigated by the Legislative Yuan must be substantially related to the exercise of its competence for it to set up an investigation commission. When the Legislative Yuan exercise its power involving other State organs, it must adhere to the limit of the principles of separation of powers and checks and balances. If the issue relates to an independent authority established by the Constitution and assigned to another State organ, it falls outside the investigative power of the Legislative Yuan. 
2. The TCC further supplemented J.Y. Interpretation No.585 on the specifics of the Legislative Yuan's investigative power: 
   • ​A) In terms of the competence and composition of the investigation commissions, the TCC supplemented that: (1) The Legislative Yuan shall not crudely delegate its investigative power to a committee, it has to specifically authorize the purpose, scope of the investigation, and requirements to request civilian cooperation; and that (2) When composing the committee, legislators of minority parties must not be precluded.
   • B) The TCC stated that the following matters fall outside the investigative power of the Legislative Yuan: (1) Individual officials that are conducting their State organs' independent powers; (2) The Executive Yuan's executive privileges; (3) On-going court cases. The TCC stressed that Legislative Yuan and Control Yuan's investigative powers do not clash with each other, but have to consider the necessity to exercise when involving the same case. When legislature investigation was met with oppositions from other State organs, the Legislative Yuan has to try resolving the problem through political negotiation before filing for constitutional review. 
   • C) The TCC supplemented that there are two measures for the Legislative Yuan to exercise its investigative powers, which are the power to request and review documents or information (including closed criminal investigations) and the power to inquire. For the power to request and review documents, the TCC stated that: (1) The Legislative Yuan may only request documents/information (regardless original copy or photocopy) from executive agencies with a plenary sitting resolution—it shall not conduct the request with a commission resolution or toward individual civil servants; and that (2) Civilians do not have the duty to provide documents/information upon request. For the power to inquire, the TCC stated that: (1) Government officials have the duty to answer inquiries but should only bear political responsibilities for their answers; (2) Civilians do not have the duty to answer inquires; (3) Civilians shall have the rights to be assisted by counsels or professionals, to refuse to testify, and to not sign an affidavit when inquired; and (4) The Legislative Yuan may stipulate law fining those who refuse to attend an inquiry without proper cause. 
3. Following the abovementioned points, the TCC declared unconstitutional or partly unconstitutional the following provisions of the LGLYP: (1) Article 45, Paragraph 1 for unconstitutionally delegating plenary sitting competence to a  smaller taskforce (all provisions concerning taskforces are thus unconstitutional thereafter); (2) Articles 45 (Paragraph 2), 47 (Paragraphs 1 and 3), 50-1 (Paragraphs 3 and 5), and 50-2 for imposing unwarranted duties on civilians and giving the legislature too much power to constraint the rights of the inquired (e.g., requiring them to pledge, denying their request for professional assistances); and (3) Articles 46-2 (Paragraph 3), 47 (Paragraphs 1 and 3), and 48 for violating the principle of separation of powers by overstepping the boundaries of other State organs' competence and privileges. 

    The sixth aspect concerned the constitutionality of the LGLYP amendments allowing the Legislative Yuan to hold congressional hearings, invite individuals (government officials or civilians) to deliver opinions or testimonies, and punish/discipline/fine uncooperative individuals:

1. The TCC pointed out that under Article 67, Paragraph 2 of the Constitution, the Legislative Yuan has the power to hold congressional hearings when exercising its competence. Under the separation of powers, although officials from the executive branch have the duty to be present and answer questions at meetings, they may refuse to answer or disclose certain information if they have appropriate reasons (e.g, national security or protection of the fundamental rights of a third party). Such duty is part of the executive branch's political responsibility—it shall not be enforced through legal measures, such as fines or criminal punishment. In the case of civilians, they do not have the constitutional duty to cooperate in the exercise of legislature competence. Civilians invited by the Legislative Yuan may decide on their own whether to attend and answer questions. 
2. For the reasons mentioned above, the TCC declared Article 59-5, Paragraphs 2, 3, 4, 5, 6, and 7 unconstitutional. These provisions impose punishment for non-cooperation or false statements by fine, impeachment, disciplinary measures, or criminal measures. The TCC also declared Article 59-4 partly unconstitutional for imposing excessive restrictions (i.e., requiring the approval by the chairperson of the hearing) on officials' or civilians' right to be assisted by counsels or professionals when they are attending the hearings. 

    The seventh aspect concerned the constitutionality of the newly amended Article 141-1 of the Criminal Code, which punishes the offense of contempt of legislature with criminal measures:

1. The TCC declared the provision unconstitutional on the ground of lacking a justifiable legislative purpose and violating the principle of proportionality. The provision was applicable to government officials who were found in contempt of legislature for lying on the inquired matters. The TCC stressed that false statement given to the Legislative Yuan should be faced with political accountabilities instead of criminal punishments.

Notes:

1. The full texts of the TCC Judgment as well as the concurring and dissenting opinions of individual Justices are available on the TCC website in 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 constitute as a part of the decision. 
3. In case of any conflict of meaning between the Traditional Chinese version and the translated English version, the Traditional Chinese version shall prevail.