Not Dedicated to Delivering Case-by-Case Justice—A New Constitutional Interpretation, An Old Judicial Problem

The Grand Justices recently delivered a constitutional interpretation with a commendable direction—Interpretation No. 725. The problem it resolves may not be something the average person personally feels; however, behind cases that citizens might view as none of their business lies a displacement of overall judicial trial attitudes and institutional values, which cannot be met with silence.

This interpretation confronts an old ailment triggered by the current Grand Justices' constitutional interpretation system, and this time the Grand Justices have prescribed a new prescription.

What is this old ailment? It is that for parties whose constitutional rights have been infringed and who come seeking help, the Grand Justices only provide constitutional interpretations in response to their requests by judging whether abstract laws are unconstitutional. They do not directly adjudicate the parties' cases; they speak in relatively abstract terms rather than granting relief directly through a judgment. If the Grand Justices deem a law unconstitutional, besides declaring it unconstitutional, they usually set a deadline for legislative amendment, forewarning the time when the unconstitutional law will become invalid. Using a doctor-patient relationship as a metaphor, the Grand Justices do not prescribe medicine for a patient's specific case; to obtain a prescription that cures the illness, the patient must return to the original hospital (namely, the original court) that failed to save them previously to seek treatment. The ailment produced by such a constitutional interpretation system is that when a party takes the Grand Justices' interpretation back to the court hoping to overturn a case, the court often rejects the party's request for retrial on the grounds that the deadline for the unconstitutional law to lose validity has not yet arrived.

What is the new prescription prescribed by the Grand Justices? This interpretation states three points. First, courts may not use the unexpired deadline for the invalidation of unconstitutional laws as a ground to dismiss a party's application for a retrial to overturn a case. Second, if the Grand Justices explicitly indicate in the interpretation how the case should be remedied, the court should follow suit. Third, if the Grand Justices do not explicitly indicate how to remedy the case in the interpretation, the court should also wait until the unconstitutional law is amended before adjudicating according to the new law. In short, although the Grand Justices do not have the custom of providing relief to parties themselves, this time they are telling the courts that it is wrong for judges to clearly declare a law unconstitutional while refusing to grant relief to the petitioner. At the very least, they must wait until the law is amended before deciding how to provide relief.

The most important part of the new prescription given by this interpretation should be the first point, which prohibits judges from closing their doors to relief for parties who have successfully challenged laws as unconstitutional. The second point of the interpretation originally states something that goes without saying: the Grand Justices clearly telling the court how to remedy the party, and the court should follow (does this imply that courts might possibly refuse to accept the instructions of the Grand Justices?). The third point leaves some ambiguous space. As Grand Justices such as Li Chen-shan (李震山), Yeh Pai-hsiu (葉百修), and Ch'en Ch'un-sheng (陳春生) jointly pointed out in their respective opinions, the Grand Justices have rarely specified how a party should be remedied in past interpretations. If everything is left to the courts to decide how to provide relief only after the laws are amended, there are simply too many variables for the parties. To truly solve the problem, the Grand Justices ought to explain how to remedy the parties within the interpretation itself.

Would you believe that this interpretation addresses a problem that has gone unresolved for nearly thirty years? There are four petitioners in this case, all of whom recently applied for and obtained Grand Justices' interpretations declaring the laws they challenged unconstitutional, only to be given the cold shoulder upon returning to court. The question that parties find most incomprehensible is: why can courts, which exercise their powers in accordance with the Constitution, turn a blind eye when the Grand Justices have explicitly determined that a law is unconstitutional, and refuse to grant relief to overturn the case?

From this interpretation, one can actually perceive the serious problems existing in judicial trials and even in the concepts surrounding Grand Justices' interpretations.

The first problem is that courts often do not take the Constitution seriously. Courts certainly do not take the Constitution seriously if they do not take the unconstitutionality of laws seriously, and they would consequently think that even before the Legislative Yuan amends the law and although the Grand Justices have confirmed the law is unconstitutional, the courts still do not need to rule out applying the unconstitutional law. The courts clearly fail to recognize that unconstitutional laws are not law, and judgments applying unconstitutional laws are also unconstitutional. The Administrative Court even selected judgments refusing to grant retrials due to laws being declared unconstitutional as precedents. Fortunately, the Grand Justices also explicitly declared in this interpretation that this precedent of the Administrative Court can no longer be applied in such a manner. Just imagine, the adjudicative power of all courts and judges comes from the Constitution; if courts do not know how to take the Constitution seriously, isn't that forgetting their roots? Isn't that absurd?

The second problem is that while the Grand Justices handle the issue of unconstitutional laws, they fail to set a good example themselves. In this interpretation, although several Grand Justices explicitly reminded others, the majority-passed interpretation still failed to specify how the four petitioners should be remedied. After the making of this interpretation, although petitioners requesting the interpretation can file for a retrial to overturn their cases and courts cannot refuse, because the Grand Justices did not specify the method of relief, if the courts must wait until the legal amendment is completed to render a judgment granting relief, the petitioners still do not know when justice will arrive. Is justice delayed akin to a prescription of three-year-old moxa for a seven-year ailment?

The hardest part to understand is that in this case, one of the petitioners was subjected to an administrative penalty imposed by a competent authority via an administrative order lacking legal authorization. Although the petitioner obtained a constitutional interpretation from the Grand Justices declaring the order unconstitutional, the Grand Justices still failed to explicitly state that relief should be granted in this interpretation. Must they wait until the administrative authority convinces the Legislative Yuan to amend the law and provide authorization, and then be punished according to the new penalty provisions? The new prescription still fails to cure the illness.

The third problem is why the Grand Justices have consistently refused to directly provide relief to parties within interpretations, ignoring petitioners who have been infringed upon by unconstitutional laws as they knock on doors across different judicial trial levels, yet are never able to obtain a swift and effective remedy that accords with judicial justice? The Grand Justices have stated in more than one interpretation that the Constitution requires them to engage in adjudication (such as Interpretations No. 530 and 601); however, in the vast majority of cases, they are reluctant to use constitutional interpretations to provide relief for petitioners' individual cases. Grand Justice Su Yung-chin (蘇永欽) penned a concurring opinion of tens of thousands of words in this interpretation, attempting to explain that the proper duty of the Grand Justices is the "maintenance of objective order" rather than the "relief of subjective rights." However, the introduction of these two concepts was originally borrowed from German constitutional jurisprudence and the system of the constitutional court. Clearly, the German Federal Constitutional Court has always balanced both, whereas our Grand Justices often console themselves with the saying "You love your sheep, I love the ritual." I truly fail to understand what value there is in sacrificing the ritual of the sheep; why can't they find a way to "both love the sheep and love the ritual" like the German Federal Constitutional Court?

Behind this debate lies none other than an attitude of "not taking the protection of case-by-case justice as one's own responsibility," which has long permeated judicial practice. What is manifested is the contribution of so much wisdom and time, extensively citing sources, and writing concurring opinions comparable in nature to high-level academic papers, elaborating in meticulous detail why providing relief to individual parties should not be the responsibility of the Grand Justices, yet refusing to add a single line of text to the interpretation that would enable any petitioner who has spent their youth wasting away in judicial procedures and suffered from unconstitutional laws to timely obtain effective and targeted judicial relief. As for the suffering of petitioners running around between trial levels afterward, perhaps out of transcendence from worldly matters, there is no sense of compassion, nor does it seem to be on their minds.

Yet, when any litigant comes before the judiciary, isn't their sole, humble plea simply to expect the judiciary to deliver fair justice for their specific case? How could it possibly be just hoping to hear judges utter abstract legal analyses that only scholars can understand and that the parties do not care about?

The construction of complete academic theories is, of course, extremely valuable. However, delivering fair justice on a case-by-case basis is the heavenly vocation of the judiciary. How can a judiciary that refuses to deliver case-by-case justice be said to have fulfilled its responsibilities? If the legal community, from the Grand Justices down to judges, consistently distances itself from delivering case-by-case justice, how can it expect ordinary society to resonate with the judiciary's performance? To trust it? Whom should we blame if public confidence in the judiciary is lacking?

Fairly speaking, Interpretation No. 725 has after all taken a giant step forward and has a great deal that is commendable. However, upon reading the lack of final decisive determination in the interpretation—behind which is hidden a value judgment that fails to recognize that the judiciary's heavenly vocation is to deliver case-by-case justice—one cannot help but feel a sense of deep regret, leaving one to put down the pen and sigh three times over!