Finally, Winning a Constitutional Interpretation No Longer Means Losing the Lawsuit

Last Friday the Grand Justices issued Interpretation No. 725, and the protection of constitutional human rights in Taiwan took another step forward. Interpretation No. 725 addresses this problem: when a law is declared unconstitutional, the Grand Justices, worried that immediate invalidation would cause too great a shock, often grant a grace period of one or two years. This is called "invalidation at a fixed date."

What people care about most is this: during that one- or two-year period, can the person who successfully petitioned for the interpretation still get relief in their own case? The Supreme Court said: the law has not yet "lapsed," so the case is dismissed. Taiwan's judiciary can truly drive people crazy: why does "winning the constitutional interpretation still mean losing the lawsuit"? Interpretation No. 725 finally settled it: when people win a constitutional interpretation, their individual case can of course be remedied immediately. It was a resounding slap in the Supreme Court's face.

Looking back on representing the petitioners in Interpretations No. 670 and No. 725, the process stirred mixed feelings.

When Interpretation No. 670 came out, I happened to be doing military service. On my way home on leave, I got the news: the interpretation was out! The Compensation Act for Wrongful Detention and Execution had been held unconstitutional! It was the first constitutional interpretation case of my life, and in that moment I was proud of myself and the team. Only later did I realize that this interpretation declared the law unconstitutional but let the provision lapse only two years later. In other words, the interpretation benefited others, while the petitioner himself got no chance of redemption at all. It was a "genuinely" "pro bono" case.

Had this been a paid case, I honestly wouldn't have known whether to refund my client. We won the interpretation, and yet the client became an "outsider"? Ordinary people would never understand it, but that is precisely the purpose of Taiwan's system of constitutional review: maintaining the "constitutional order" is what matters, and relief for individual cases is merely "incidental."

This is hard to accept. First, when Interpretations No. 177 and No. 185 were issued, the Grand Justices had not yet even developed the method of declaring laws unconstitutional with "invalidation at a fixed date." It is unreasonable for the ordinary courts to narrow the scope of interpretations on the ground that "the law is unconstitutional but still in effect." To put it bluntly, the Supreme Court has always resisted the Grand Justices' interpretations, avoiding them where it can and narrowing them where it can.

Second, this also violates the right to equality under Article 7 of the Constitution. No one knows whether an unconstitutional law will lapse immediately, lapse at a fixed date, or simply be declared unconstitutional. Whether a case can be remedied depends entirely on the Grand Justices' whim, which is a form of differential treatment.

If the Grand Justices consider themselves important to the people, yet pull back when people's rights are violated and toss the power of life and death back to the Supreme Court and the Legislative Yuan, one cannot help feeling that they take only the benefits and none of the burdens. After Interpretation No. 670, we tried to petition for a retrial, and the ordinary courts ignored us entirely, which is what led to the subsequent second constitutional petition.

Seeing that Interpretation No. 725 had four groups of petitioners shows how deep people's hopes in, and disappointment with, the Grand Justices run. The most closely watched were the Wang family of Wenlin Yuan, whose losses, tangible and intangible, are beyond count.

Some say the judiciary is like a meat grinder, throwing people in again and again until they are no longer recognizable as human. Only after losing at all three instances can one petition the Grand Justices. If one is lucky enough to win, one must then still seek a retrial or an extraordinary appeal, begging the judiciary to open its door once more. Only after that can one truly be vindicated. Only the parties themselves know the torment along the way. My clients, Mr. Chang Kuo-lung and Mr. Ko Fang-tse, first went through thirty years of criminal litigation before their acquittals became final!

In fact, if the ordinary courts had even a little constitutional awareness, why would the Grand Justices need to be troubled at all? Looking back on the long road to Interpretation No. 725, can the judges really not feel for those who traveled it?