So, We No Longer Have to Wander Around the Courts?

"Mr. K'o, good news! Our petition for constitutional interpretation was successful. The Grand Justices said the Law on Compensation for Wrongful Detentions and Executions is unconstitutional, and your case can be tried again!"
"That's fantastic! Counsel, may I ask, since the Grand Justices said the law is unconstitutional and will lose its effect no later than two years from now, does that mean the statutory provisions are still valid?"
"Yes, sometimes the Grand Justices just do that. Worried that immediately declaring a law invalid would shake the foundations of the state, they grant a buffer period for the Legislative Yuan to amend the law."
"Then how should my case be handled?"
"No problem, let's first use this Constitutional Interpretation to apply for a retrial."

Five months later.

"Mr. K'o, I'm sorry. Today the court notified us that your request has been dismissed. The reason is that the legal provisions did not immediately lose effect, so there was no illegality of applying the wrong law; the court still dismissed your request."
"Counsel, why did this happen? Didn't the Grand Justices say the legal provisions violate the Constitution? Why can the court still say they committed no illegality when dealing with unconstitutional provisions? Didn't you say before, Counsel, that the Grand Justices' interpretation is final and absolute? That all judges would listen to the Grand Justices?"
"Counsel, why aren't you saying anything?"

Last Friday (October 24), the Grand Justices delivered Interpretation No. 725, which directly addresses the situation depicted in the dialogue above.

When a case has exhausted all judicial relief procedures yet still falls short of expectations, one can only look up to the Grand Justices. When the Grand Justices finally speak out, everyone is overjoyed and applies for a retrial. However, the Grand Justices declare a "timed invalidation," and judges of ordinary courts in our country stubbornly argue that the law remains valid "before the expiration of the time limit" and that they themselves made no mistake, leaving the case still unable to be retried.

The Constitution stipulates: "Statutes that contravene the Constitution shall be null and void." Contravening the Constitution is unconstitutionality, and unconstitutionality means nullity. Ordinary citizens find this utterly baffling. In reality, judgments rendered by ordinary court judges in our country based on unconstitutional provisions constitute a failure to fulfill the duty of rendering judgments by applying constitutional norms (cf. Interpretation No. 371); therefore, the resulting judgments are inevitably unconstitutional as well. Being unconstitutional, they are naturally illegal, and courts cannot use the argument that unconstitutional provisions are still valid to claim they did not misjudge the case.

The stubborn arguments made by judges of ordinary courts in our country completely ignore the supremacy and effectiveness of the Constitution. This is actually a lingering remnant of pre-WWII German public law theory—where the Constitution was placed on a political altar to gather dust, claiming that the Constitution lacked normative force and was merely programmatic provisions (such a public law theory serving those in power does not even qualify as legal positivism). After WWII, Germany established a constitutional court and long ago abandoned this legal theory. Ironically, "judges of ordinary courts in our country," in order to gloss over their faults and stubbornly refuse to admit mistakes (admitting mistakes would entail accountability), secretly borrowed this logic to defend themselves within the category of timed invalidation interpretations without the consent of the Grand Justices.

The contradiction between the Grand Justices and ordinary court judges torments ordinary citizens. While petitioning the "Grand Justices" for constitutional interpretation is difficult, "ordinary court judges" are never stingy in giving ordinary citizens a few more opportunities to petition again. At last, the Grand Justices made themselves clear in Interpretation No. 725: when declaring a legal provision to be "timed invalidation," courts at all levels may not dismiss cases on the grounds that it remains valid within the time limit. As of this point, ordinary court judges can no longer deny relief to the people on the grounds that the current law is still valid.

Aside from Interpretations No. 638, 658, 670, and 709 respectively represented by the petitioners in this Interpretation No. 725, there are actually quite a few other constitutional interpretation cases in which the Grand Justices have declared timed invalidation.

Take Interpretation No. 653 for example. The controversy of that constitutional interpretation was whether a detained defendant had the right to seek "judicial relief" when dissatisfied with a detention center's disciplinary action. Something that sounds like a matter of course was treated like an urban legend in the courtroom, until it was affirmed by the Grand Justices in 2008, requiring relevant authorities to amend the law within two years. However, the story did not end there. The petitioner used Interpretation No. 653 to apply for a retrial, yet the Supreme Administrative Court stated that this interpretation did not state that the law would "immediately lose effect," and therefore could not grant the petitioner relief. It was not until this year that the Grand Justices issued Interpretation No. 720, stating that petitioners should be allowed to apply mutatis mutandis the Code of Criminal Procedure for relief prior to the amendment of the law. It is understood that the detained defendant at the time had already finished serving his sentence, yet he was still seeking judicial relief for the disciplinary action he received when he first entered the detention center back in 2002, pursuing his justice.

Interpretation No. 653 also gave a two-year deadline, but nearly six years have passed, and the relevant laws still have not been amended. Similarly, another ruling, Interpretation No. 530, required the review of organizational laws related to the Judicial Yuan and other organs within two years; 13 years have passed to this day, and no review or amendment has been seen. Legislative inertia leaves the Grand Justices helpless, while ordinary court judges stubbornly quibble, and the ones who suffer in the end are the ordinary citizens waiting foolishly for justice.

We have no way of knowing what factors the Grand Justices consider when issuing "timed invalidation" interpretations, nor the rationale behind the "two years." But solving this problem is quite simple. When litigation is repeatedly dismissed and finally reaches the Grand Justices, the Grand Justices should settle the dispute once and for all, delivering a constitutional judgment to bring matters to a close. This also involves the choice of the constitutional interpretation system: if our country had a constitutional complaint mechanism, the elderly gentlemen wandering the courts for 30 years could have left the judiciary a few years earlier, and litigants in other cases could all have obtained justice sooner.

The "Act Governing the Adjudication of Constitutional Interpretation Cases by the Judicial Yuan" is currently under review in the Legislative Yuan. It is hoped that legislators will take this as an example, understand the public's dissatisfaction with and expectations for the judiciary, and complete the legal amendments.