Nominee Yao Li-ming's Response to the Fifteen Questions from the Grand Justices Nomination Oversight Alliance

Back to Overview

• Concerns Regarding Human Rights and Constitutional Issues

1. During your eight-year term, what do you consider the most significant constitutional issue or fundamental human rights issue (or the one of greatest concern to you)?

Answer:

The provision on the "threshold for constitutional amendment" in Article 12 of the current Additional Articles has made constitutional amendment practically impossible. Whether it therefore violates "popular sovereignty," and whether an Additional Article can itself be unconstitutional (see my answer to Question 6 below), is in my view a constitutional issue that cannot be avoided in the future.

As for the most significant human rights issue, it is "internal press freedom" (see my explanation of "internal press freedom" in the first individual question below). If the "freedom of journalists" cannot truly be realized, it will inevitably seriously hinder the normal development of Taiwan's democracy.

2. Please give an example of a past Grand Justices' interpretation or Constitutional Court judgment and explain how you would reach a different conclusion or take a different line of reasoning.

Answer:

There are many cases in which Grand Justices' interpretations should have, but did not, explain in detail the "scope of protection" (German: Schutzbereich) of an individual right, leaving the Constitutional Court unable to settle the dispute definitively. I will cite only Interpretation No. 242, in which I was personally involved, the first interpretation concerning the "right to marry."

When I was a director of the Chinese Association for Human Rights, I received a petition from an elderly veteran surnamed Teng. He had been married in mainland China and, several years after coming to Taiwan, married again. After cross-strait family visits were opened, his first wife in the mainland retained a lawyer in Taiwan to sue to annul the "bigamous" marriage. Because the first wife not only still had the marriage certificate but also produced evidence that the first marriage had a public ceremony, the petitioner's later marriage in Taiwan was annulled by final judgment.

Because of my constitutional awareness, I believed the courts at every instance had failed to consider the constitutionally protected right to marry, so I helped the petitioner apply for a constitutional interpretation. At the time, the law did not allow non-lawyers to serve as litigation agents, even one with constitutional expertise, so I asked a lawyer friend to serve as agent while I wrote the grounds concerning the content of the right to marry. The petition had to resolve two key questions: first, because the Constitution contains no words "protecting marriage," it had first to be argued that the Constitution protects "the people's freedom to marry" (this has since become the prevailing academic view and needs no elaboration); second, although the "right to marry" does not protect "bigamy," why did the court's judgment infringe Mr. Teng's right to marry?

First, the scope of protection (Schutzbereich) of the constitutionally protected "right to marry" is: everyone may enjoy married life, everyone may enjoy the property of another through marriage, and so on. Simply put, interpreting bigamy under the Civil Code from a constitutional perspective should mean not two marriages "in form," but two or more "married lives" in substance. For if marriage is not understood this way, Mr. Teng and all the so-called mainlander veterans in the same situation would, because of the state's act of cutting off cross-strait contact, be unable to enjoy married life for the rest of their lives, and such state conduct of course infringes the constitutionally protected right to marry.

Regrettably, Interpretation No. 242 not only failed entirely to clarify the scope of protection of the "right to marry," but, relying on the so-called concept of an "exception"—that "bigamy occurring when the state suffered a major upheaval and spouses were separated with no prospect of reunion differs from ordinary bigamy"—held both of Mr. Teng's marriages valid.

Because of this erroneous interpretation, later interpretations such as Nos. 362 and 365 recognized further "exceptional" lawful bigamy, including "exceptions" deliberately created by parties seeking to maintain two or more substantive married lives at the same time.

Had the Grand Justices at the time understood my argument on the "scope of protection" of the right to marry and recognized that everyone, regardless of gender, has the right to enjoy married life, the later series of erroneous interpretations permitting bigamy would not have occurred, and the issue of same-sex marriage could also have been resolved long ago.

3. Are there constitutional or human rights issues on which you hold a firm constitutional conviction that diverges to some degree from the current stable mainstream view or legal order, or on which society remains divided?

Answer:

What diverges most from the current stable mainstream view is probably my "constitutional consciousness." I believe that because many basic concepts in Taiwan have not been clarified, the road to mature democracy and rule of law remains long. Here I will briefly explain just one basic concept: a "constitution" is not a "law."

The greatest misunderstanding is to treat law as the "higher" concept, thinking the constitution is one of the specialized laws, on a par with civil law, criminal law, procedural law, and so on.

In fact, in English the constitution is not called "law" but "Constitution"; in German, law is Gesetz while the constitution is Verfassung. The constitution first became an academic discipline at the University of Paris, placed not in law but in the "social sciences."

Many well-known constitutional law professors at Taiwan's universities teach not in law departments but full-time in political science departments. The organizational part of the Constitution, which makes up 80% of its provisions, including what Germany calls "state law" (Staatsrecht, or "theory of the state"), covering the theory of separation of powers, party politics and the constitution, elections and democratic theory, local self-government, and so on, is almost unfamiliar territory to most legal professionals. Yet under Article 4, Paragraph 1, Subparagraphs 1 to 3 of the current Judicial Yuan Organization Act, which set the qualifications of Grand Justices, judges, prosecutors, and lawyers have rarely studied constitutional law. Subparagraph 4 further requires scholars to have "taught the main legal subjects specified in Article 5, Paragraph 4 of the Judges Act," and the Judges Act lists "constitutional law" among its main legal subjects alongside "laws" such as civil law, criminal law, private international law, commercial law, administrative law, civil procedure, criminal procedure, administrative litigation, compulsory enforcement, and bankruptcy law, which illustrates the point.

Space does not permit a detailed explanation of why "the constitution is in essence not a law but an interdisciplinary science." I will take only "lowering the voting age from 20 to 18"

as an example: why not 19? Would 17 or even 16 be acceptable? What is the standard for deciding? Even when looking to foreign legislation, one cannot know only half the story. This concerns voters' "capacity to participate in and judge public affairs," and relates to social development and even to the "biology" of maturity ages, which differ across ethnic groups. Such constitutional questions are therefore not simply "legal questions."

Similar questions include: what is the legitimacy of Taiwan holding elections every four years? Could the term be shortened, or extended to 5, 6, or even 7 years? At what length would re-election intervals raise concerns of being "undemocratic"?

It is a misunderstanding to think that only the "organizational part" of the Constitution is remote from legal professionals while "human rights" are closer to them. In fact, every "human right" the Constitution protects involves other social sciences' understanding of the state of social development, and much of it lies outside legal professionals' expertise.

Based on my understanding of the overall development of the current constitutional environment, I offer only the examples above to illustrate how my constitutional convictions differ from the stable mainstream view.

• International Human Rights Covenants and Constitutional Review

4. Paragraph 16 of the 2022 Concluding Observations of the International Review Committee on the human rights covenants states: "... in cases where existing or subsequently enacted laws conflict with the two Covenants, the status of the two Covenants must be further clarified. The Review Committee stresses that the two Covenants, as the two most important UN human rights treaties, should be given priority." In your view, when international human rights covenants incorporated into domestic law conflict with domestic laws, should the covenants be applied with priority? Or, in case of conflict, should the standard of constitutional review be heightened? How does the list of rights in the international human rights covenants relate to the types and content of fundamental rights in Taiwan?

Answer:

I agree that when international human rights covenants incorporated into domestic law conflict with domestic laws, the covenants should be applied with priority, because they represent core values universally recognized by humanity. I also agree that when the Constitutional Court interprets provisions of Taiwan's Constitution in individual cases, it should refer to the covenants' list of rights to supplement the types of fundamental rights in Taiwan and confirm the "scope of protection" they include.

5. Article 10, Paragraph 7 of Taiwan's Additional Articles of the Constitution provides that the employment assistance, livelihood maintenance, and relief of persons with disabilities shall be guaranteed, and their independence and development supported. Paragraph 3 of General Comment No. 6 of the Convention on the Rights of Persons with Disabilities, which has been incorporated into domestic law, further states: "... denial of reasonable accommodation constitutes discrimination." Do you believe the content of this General Comment is legally binding? In constitutional review, do you consider that laws or judgments violating the "principle of reasonable accommodation" infringe the right to equality and should be subject to strict scrutiny?

Answer:

In my view, the General Comments of the Convention on the Rights of Persons with Disabilities, which has been incorporated into domestic law, naturally have constitutional rank and are legally binding. Setting aside how the "rights of persons with disabilities" should be realized, I will briefly address only the overall positioning of Article 10 of the Additional Articles as a supplement to the "Fundamental National Policies" listed in Chapter 13 of the Constitution.

Past Grand Justices' interpretations of the fundamental national policies are open to question on two points. First, the method of interpreting constitutional provisions by supplementing them with statutory norms is mistaken, for example interpreting the concept of assembly in the constitutional freedom of assembly by the definition of assembly in the Assembly and Parade Act. This misplaced method naturally means there are few cases in which laws are found to violate the fundamental national policies. Instead, one should first understand what is to be protected from the scope of protection of the individual constitutional right, and then use that to test whether current laws are unconstitutional.

The second problem is that the prevailing academic view holds that the constitutional provisions on "fundamental national policies," including the Additional Articles, are merely "declaratory" (or "hortatory") and have no legal force or binding effect, so in practice the legal problem of "legislative inaction" is rarely examined.

How to provide remedies for problems arising from "legislative or administrative inaction" with respect to all constitutional norms will be an important issue for the Constitutional Court in the future. Both of the above are situations that must be changed by a "Constitutional Court" with "correct constitutional consciousness." The same is true of "employment assistance, livelihood maintenance, and relief for persons with disabilities."

• Referendums and Constitutional Review

6. Article 12 of the Additional Articles of the Constitution provides that amendments to Taiwan's Constitution must go through the Legislative Yuan and a referendum. The 2022 constitutional amendment referendum on "citizenship at 18" failed because it did not meet the threshold. In light of the current amendment procedure and the practice of that referendum, do you consider the current procedure and threshold appropriate? How do you assess their impact on Taiwan's democracy? Is Article 12 of the Additional Articles constitutionally questionable?

Answer:

First, according to Interpretation No. 499, "Provisions of the Constitution that are of essential importance and form the foundation of the normative order cannot be altered by amendment; otherwise the overall normative order of the Constitution would be destroyed, and the amended provisions would lose their legitimacy. Among the constitutional provisions, the principle of a democratic republic established in Article 1, the principle of popular sovereignty in Article 2, the protection of the people's rights in Chapter 2, and the principles of separation and checks and balances of powers are of essential importance and constitute the fundamental principles of the Constitution as a whole." Clearly, the Constitutional Court has long confirmed that Additional Articles may themselves be unconstitutional.

The first half of Article 12 of the current Additional Articles provides that "amendment of the Constitution shall be initiated upon the proposal of one-fourth of the members of the Legislative Yuan, passed by at least three-fourths of the members present at a meeting attended by at least three-fourths of the total members." Although this initiation procedure is stricter than the common practice in other democracies of two-thirds attendance and a two-thirds vote, its intent is to ensure that minority parties can still take part in amending the Constitution, and it is not impossible to achieve in practice, so it should raise no constitutional problem.

But the second half of Article 12, which provides that "the amendment shall be submitted to the electors in the free area of the Republic of China for ratification six months after its promulgation, and shall be passed if the valid votes in favor exceed one-half of the total number of electors," is another matter. A look at Taiwan's past nationwide referendums and presidential and legislative elections shows that achieving valid votes in favor exceeding half of all electors is almost impossible. This amendment threshold has clearly obstructed the people's exercise of the power to amend the Constitution and infringes the "basic principle of democracy," and is suspect of being unconstitutional. Owing to limited space, I will not elaborate here on the core content of the "basic principle of democracy."

7. After Judicial Yuan Interpretation No. 748 was issued, several groups opposed to same-sex marriage filed a referendum proposal with the Central Election Commission in January 2018 (on whether same-sex marriage should be defined and protected by the Civil Code), and the referendum was held on November 24 of that year. Against the CEC's administrative disposition announcing the referendum proposal as established, LGBT plaintiffs, as interested parties, filed suit before the vote in the Taipei High Administrative Court seeking its revocation and applied for a stay of the referendum. The case became final on May 29, 2020, when the Supreme Administrative Court, in Judgment 109-Pan No. 300, dismissed the plaintiffs' appeal, holding that the plaintiffs were not interested parties, had no subjective public rights, had no standing to sue, and could not invoke the protective norm theory, adding in passing that even if a referendum proposal violated the Indigenous Peoples Basic Law, the CEC would merely have the authority to reject it, and standing to sue would lie by law with prosecutors, not with indigenous people themselves. What is your view of the position that interested parties lack standing to sue even when their rights are directly infringed? For referendum proposals highly likely to be unconstitutional, can the provisional measures system under Article 43 of the Constitutional Court Procedure Act be used, and if so how?

Answer:

First, I believe that when interpreting Article 7 of the current Constitution, "All citizens of the Republic of China, irrespective of sex ... shall be equal before the law," the Constitutional Court should broaden the term used at the time of drafting, equality of "men and women," to equality of "gender," bringing the gender definitions of LGBTI people within its scope. It is especially important to draw on the anti-discrimination provision of Article 3, Paragraph 3 of the German Basic Law, "No person shall be favored or disfavored because of sex ...," so as to truly realize the core value of "substantive equality" in the Constitution.

Second, the referendum system realizes "direct democracy" and compensates for the shortcomings of "representative democracy." From a democratic standpoint, therefore, referendums and decisions of the Legislative Yuan are both part of the democratic system, and neither has greater democratic legitimacy than the other.

Moreover, because the Constitutional Court is the last line of defense for the constitutional order, the content of referendums must undoubtedly also respect the Constitution's design for protecting "fundamental human rights" and the "separation of powers" and the basic values they contain.

As for Supreme Administrative Court Judgment 109-Pan No. 300, which dismissed, on procedural grounds (finding that the plaintiffs were not interested parties, had no subjective public rights, had no standing to sue, and could not invoke the protective norm theory), the suit of parties who believed their right to marry was infringed, it raises the question of "how Constitutional Court judgments bind courts at every level."

First, judgments of the Constitutional Court are binding on all agencies, including of course the CEC and the courts at every level.

"Binding effect" here must be understood broadly: all agencies have a duty to implement Constitutional Court judgments. That is, Constitutional Court judgments have constitutional rank and are a source of law for administrative agencies "administering according to law" and for courts "adjudicating according to law," and must be implemented directly in administrative decisions or judgments.

However, for referendum proposals highly likely to be unconstitutional, the Constitutional Court need not issue a provisional measure under Article 43 of the Constitutional Court Procedure Act in every case, because not every possibly unconstitutional referendum meets the condition that "rights or the public interest would suffer serious harm that is difficult to remedy, there is urgent necessity, and no other means can prevent it."

• State Duty to Protect and Constitutional Review

8. At present, de facto spousal relationships between cohabiting partners, whether opposite-sex or same-sex, have no clear legal protection. In light of this lack of express protection in Taiwan's legal system, do you consider it unconstitutional "legislative inaction"? Beyond this, what other current states of "legislative inaction" might be assessed as unconstitutional?

Answer:

Besides the legal relationship of de facto spouses, as I answered in Question 5, the constitutional provisions on "fundamental national policies," including the Additional Articles, also raise concerns of "legislative inaction." In my view, how to provide remedies for problems arising from "legislative or administrative inaction" with respect to all constitutional norms is an important issue for the Constitutional Court in the future.

9. Social assistance laws prioritize preventing abuse and contain rules on imputed income and total household income that do not reflect the economic realities of the poor, leading to a serious undercount of Taiwan's poor population. Although there is an exception clause (the "539 clause"), in practice people who for various reasons no longer have contact with their families of origin, or cannot or will not obtain support from them (such as victims of violence or adult LGBT people), cannot apply for social assistance when they fall into hardship. From the standpoint of the protection of social rights under Taiwan's Constitution and constitutional interpretation practice, how should legislative or administrative inaction that inadequately protects disadvantaged groups be subjected to constitutional review? Do the problems with the social assistance system described above infringe the people's right to existence and other fundamental rights?

Answer:

The protection of the "right to existence" in Article 15 of the current Constitution, and Article 10, Paragraph 8 of the Additional Articles, "The State shall emphasize social welfare services such as social assistance, welfare services, employment for citizens, social insurance, and medical and health care, and shall give priority to budgeting for relief expenditures such as social assistance and employment for citizens," both impose a duty to act on the state. As I answered in Questions 5 and 8, resolving the problem of legislative inaction is an important issue for the Constitutional Court in the future. I therefore believe that, based on the duty imposed by the Constitution, whether or not legislation has been enacted, the "government" should, adopting the minimum level of statutory reservation, that is, by administrative order, provide those who are poor or in need of emergency relief with "what is needed to maintain a basic life with dignity."

10. In legal issues involving climate and environmental change, many infringements of people's rights arise not from acts of public authority but from state inaction or insufficient action (such as carbon emissions policy). For vulnerable groups whose rights are about to be or are being infringed in extreme climate scenarios, do you believe these groups or interested parties have standing to sue to compel the state to fulfill its duty to protect? If the system provides no appropriate remedy, does that infringe the right of access to the courts?

Answer:

The current Constitution contains no express provision on "environmental protection"; only Article 10, Paragraph 2 of the Additional Articles provides that "economic and scientific and technological development shall be pursued with due regard to environmental and ecological protection."

However, in the face of changing times and social needs, until the Constitution is amended, the Constitutional Court should confirm from the expressly protected "right to existence" and "right to bodily integrity" that the people enjoy an "environmental right"; that is, based on the scope of protection of those two rights, it should hold that Article 22 of the Constitution includes an environmental right, thereby confirming the people's rights in environmental matters—the right to defend against and resist environmental pollution and the state's duty to act—and recognizing that parties or interested parties harmed by environmental damage have the right to sue.

• Gender Identity and the Protection of Fundamental Rights

11. Judicial Yuan Interpretation No. 748 held that differential treatment based on "sexual orientation" falls within the scope of the right to equality under Article 7 of the Constitution and should be subject to heightened scrutiny. Do you believe Taiwan's Constitution protects "gender identity"? On what basis and to what degree? What standard of review should apply to differential treatment based on "gender identity"? Do you believe the constitutionally protected "right to sexual autonomy" includes a "right to gender self-determination"? What is your view on changing one's legal gender without surgery (not requiring gender reassignment surgery to change gender registration)? If you support this, do you believe changing gender registration should still require other conditions (such as a psychiatric diagnosis)? Or do you support "free" change of gender registration?

Answer:

As in Question 7, I believe that when interpreting Article 7 of the current Constitution, "All citizens of the Republic of China, irrespective of sex ... shall be equal before the law," the Constitutional Court should supplement the term used at the time of drafting, equality of "men and women," by interpreting it as equality of "gender," so as to bring the gender definitions of LGBTI people within its scope. It is especially important to incorporate the anti-discrimination concept of Article 3, Paragraph 3 of the German Basic Law, "No person shall be favored or disfavored because of sex ...," to confirm the "right to gender self-determination" and recognize the right to change one's gender registration without requiring gender reassignment surgery, thereby truly realizing the core value of "substantive equality" in the Constitution.

• Land Expropriation and the Protection of Fundamental Rights

12. In recent years, land development for major national construction projects has made extensive use of zone expropriation (for example, the Taoyuan Aerotropolis, Taipei's Shezidao development, MRT development, and railway development), infringing people's right to housing and property rights. Do you believe "national economic development" alone is a sufficient public-interest purpose for the state to initiate expropriation? Is "zone expropriation" as adopted in Taiwan's legal system unconstitutional? In disputes over relocating residents living on state-owned land, do you believe the state may assert its ownership purely as a private party, without considering the infringement of residents' right to housing and other fundamental rights by public authority?

Answer:

In my view, current land policy completely contravenes the current Constitution.

Article 143, Paragraph 1 of the Constitution expressly provides: "All land within the territory of the Republic of China shall belong to the whole body of citizens. Private ownership of land, acquired by the people in accordance with law, shall be protected and restricted by law. Privately owned land shall be liable to taxation according to its value, and the government may buy such land according to its value." Paragraph 3 of the same article further provides: "If the value of a piece of land has increased, not through the exertion of labor or the employment of capital, the State shall levy thereon an increment tax, the proceeds of which shall be enjoyed by the people in common."

It follows that whether it is the gap between announced land values and actual prices, the excessively low land value increment tax, or current regulations concerning land as property, none of them implements the Constitution's provisions, especially that "increases in land value belong to the public," allowing "land speculation" to seriously infringe the people's right to housing.

As for the state's zone expropriation of land, I believe it too must be considered from the constitutional position that limited land must be shared by all, that is, "land is not a commodity," and from the perspective that value added to private land by state investment must accrue to the state.

• Human Rights in Correctional Facilities

13. Judicial Yuan Interpretation No. 755 held that it is unconstitutional to bar prisoners from seeking remedies when prison management measures unlawfully infringe their rights and the infringement is not clearly minor.

(1) A prisoner petitioned a civil society group, stating that prison staff had read his letters. The prison then found no such thing had occurred and punished the prisoner for "damaging the reputation of prison staff." Do you consider the prison's punishment of the prisoner appropriate? Does it violate Article 91 of the Prison Act?

(2) What is your view on the current situation in which prisoners in Taiwan cannot vote because they are physically incarcerated?

Answer:

(1) Prison staff reading a prisoner's letters and punishing the prisoner for "damaging the reputation of prison staff" is not a question of "whether it violates" the Prison Act, but of whether Article 91 is unconstitutional or how it should be given a constitutionally conforming interpretation.

If the purpose of the Prison Act's authorization for facilities to read prisoners' letters is to "prevent crime," then the content of any letter involving no criminal facts (including assessments of prison staff) may not be reviewed. The principle of proportionality includes the "principle of least harm": the means of restricting human rights for a public-interest purpose must be the one "least harmful to the person restricted." Under this principle, "opening and reading letters" itself infringes the "right to privacy," while reviewing their content infringes "freedom of speech." Therefore, under the "principle of least harm," if a facility can achieve the public-interest purpose of preventing crime by infringing one human right, privacy, it may not infringe two, both privacy and freedom of speech.

(2) The current situation in which prisoners in Taiwan cannot vote because they are physically incarcerated contravenes Article 129 of the current Constitution: "The various kinds of elections prescribed in this Constitution, except as otherwise provided by this Constitution, shall be by universal, equal, and direct suffrage and by secret ballot."

The principle of "universal" suffrage, viewed in light of the Weimar Constitution on which our Constitution was based, should be understood as "general," meaning the Constitution requires the government, especially the legislature and executive, to make every effort to ensure that all voters "eligible to vote" can actually exercise their right to vote.

Voting systems in advanced Western countries, such as absentee voting and postal voting, implement the constitutional "principle of universality." Taiwan, too, while guarding against possible abuses, should consider how to concretely implement this constitutional principle for "prisoners" and others in similar situations, such as bedridden hospital patients and citizens studying or working abroad.

• Equality and Anti-Discrimination

14. Regarding cases in which a public university expels a student in circumstances involving serious discrimination: if the discriminatory act has been determined by another competent authority, which has found that the student's "opportunity to study should be restored," may the administrative court revoke the public university's unlawful expulsion decision, whether or not it has become final? If revocation is not permitted, how should the court's judgment protect the rights of the student discriminated against?

Answer:

Several Grand Justices' interpretations have already confirmed students' rights. If a student expelled in circumstances involving discrimination has been found by another competent authority to be entitled to have their "opportunity to study restored," the public university should revoke its own expulsion decision, and whether or not it has become final, the administrative court may revoke it. If the court does not permit revocation, the Constitutional Court should, upon petition, render a judgment "revoking the final judgment," thereby binding administrative agencies at all levels, including public and private schools, and courts at all levels.

15. To enact an "Anti-Discrimination Act," the government commissioned a research project in 2018 on "Whether Taiwan Should Enact a Comprehensive Anti-Discrimination Act and Legislative Recommendations," whose final report proposed a 67-article draft. However, the "Draft Anti-Discrimination Act" announced by the Executive Yuan in May 2024 differs considerably from the research project's draft. What is your view on enacting an "Anti-Discrimination Act"? Besides clarifying the right to claim compensation for discriminatory acts, what else should it contain?

Answer:

I support the Legislative Yuan completing the enactment of an "Anti-Discrimination Act" as soon as possible. However, since the content of individual provisions is still under discussion and some may become cases before the future "Constitutional Court," it would be inappropriate for me to express my position or views on individual provisions of the draft in advance.

Common Questions for the Nominees for President and Vice President of the Judicial Yuan (7 Questions)

1. In recent public satisfaction surveys of the government, the item with the lowest satisfaction is "judicial reform." What do you believe are the reasons for the public's low trust in the judiciary, and how should this be improved?

Answer:

More than ten judicial reform measures are currently under discussion or being piloted, and I believe it is still too early to judge the success or failure of each. Here I will raise only one point "overlooked by legal professionals": who exactly should take part in judicial reform? In the past, judicial reform was handled mostly within the echo chamber of judges, prosecutors, lawyers, and legal scholars, so some problems with judicial personnel themselves inevitably went unseen or unaddressed. For example, the root of society's distrust of judicial personnel lies in the quality and competence of judges (and of course prosecutors and other judicial personnel) in deciding cases.

Based on my observation, it must be admitted that some judicial personnel, including judges and prosecutors, lack the competence and social experience to handle complex social phenomena. The training of legal professionals in Taiwan centers on understanding and applying "statutory provisions." Even after six or seven years of professional legal training in university, graduate school, and the Judges and Prosecutors Training Institute, legal professionals entering the judicial system are still "newcomers to society." Advanced Western democracies often use the "judgment of Solomon" as a metaphor for the highest-quality judicial decisions, and the key to the judgment of Solomon lies in brilliant "fact-finding," not in applying statutes.

Simply put, most of what the public calls "dinosaur judges" are not those who err in "applying the law," but rather far too many judicial professionals whose ability to "find facts" is called into question.

I therefore believe that judicial reform involving only legal professionals cannot fully see the shortcomings in the education and training of current judicial personnel, cannot propose ways to make up for their lack of social experience, and, because "those inside cannot see clearly," cannot design an exit mechanism for unfit judicial personnel.

From this perspective, I believe judicial reform not only must not be abandoned halfway but should continue with even broader social participation.

2. The legal community has long seen situations in which different agencies and groups find it difficult to reach consensus on particular issues. How will you promote dialogue and exchange among agencies and groups (such as the public, judges, civil society groups, and the Ministry of Justice)?

Answer:

As I answered above, I do not believe framing judicial reform as a matter of seeking consensus within the "legal community" is the right premise. This is not to say seeking social consensus on particular issues is unimportant, but seeking the views of more knowledgeable people outside the legal community on the focal points of disputed issues should help reduce disputes.

3. At the 2016 National Conference on Judicial Reform, you served as a member of "Group 1: A Judiciary That Protects Victims and the Disadvantaged." What is your view of that group's resolutions and their implementation? Many important resolutions among the Congress's 326 resolutions have yet to be implemented; how do you think they should be advanced?

Answer:

First, I did not take part in the National Conference on Judicial Reform.

Second, if entrusted with the role of deputy head of judicial administration, I would, under the President's authorization, review each of the conference's resolutions in detail and continue to track and seek ways to implement them according to their priority.

4. Do you believe the resources the government currently devotes to adjudication are sufficient? What are your views on planning or increasing the judicial budget?

Answer:

I must admit that I have not previously studied judicial resource issues such as personnel and budget in depth; I know only roughly that the judiciary is overburdened because of staff shortages, and that the high caseload per judicial officer affects the quality of judgments. If entrusted with the role of deputy head of judicial administration, I will certainly study in depth the issues your organization has raised.

5. When the Judicial Yuan currently proposes reforms in the form of bills, it publishes the drafts and legislative explanations but not detailed policy impact assessments, making it difficult for society to assess their impact. For example, when the Judicial Yuan approved the draft on a "pyramid-shaped litigation system" in 2021, it did not explain in detail how many people's rights the restriction of the right to appeal might affect or how supporting measures would mitigate the impact. How do you think the Judicial Yuan should communicate judicial policy reforms to the public? When proposing major draft amendments, should it also present a "policy and human rights impact assessment"?

Answer:

I not only agree that judicial agencies should present a "policy and human rights impact assessment" when proposing major draft amendments, but believe it is even more important that, for many technical issues or terms, such as the "pyramid-shaped litigation system," they communicate with society in more understandable "plain language" before implementation, clearly explaining to all sectors the "ideal goals," such as how a pyramid-shaped system can avoid wasting litigation resources, as well as the problems that may arise in the process.

6. Regarding the current problem of overwork in the judicial system, what do you see as the crux of the problem? While safeguarding people's rights, what measures should be taken to reasonably reduce the judicial burden? What are your thoughts on rationalizing caseloads while achieving the goals of in-service education and training for judges?

Answer:

Simply put, staff shortages and excessive caseloads should be the main causes of overwork in the judicial system. But besides "increasing supply," such as adding judicial personnel, I believe "reducing demand," such as measures to reduce or streamline sources of litigation, is perhaps the most important issue of all.

In addition, in a modern society where digitalization is an international trend, the Judicial Yuan must of course more actively explore reasonable applications of digitalization. I strongly support many of the ideas of the presidential nominee, Professor Chang Wen-chen, on digitalization, judicial training, and in-service education. In the future I will do my utmost to assist the President in addressing overwork among judicial personnel, continuing education, and even the removal of unfit personnel.

7. What is your view of how the "citizen judge system" has worked since implementation? What are your thoughts on continuing to reform criminal procedure (for example, the system of not transferring the case file to the court with the indictment)?

Answer:

The citizen judge system began in 2023, and the number of cases that can be evaluated so far is limited; I believe it is not yet enough for a fair and accurate assessment. For that very reason, I support expanding the scope of the citizen judge system.

As for criminal procedure reform, I believe proposals that clearly move in a "more civilized" direction, such as not transferring the case file with the indictment, should continue to be advanced. At the same time, supporting measures must be designed, such as a complete pretrial discovery procedure so that both sides know in advance what evidence the other will present at trial and can prepare their arguments.

Questions for Nominee Yao Li-ming (2 Questions)

1. In recent public satisfaction surveys of the government, the item with the lowest satisfaction is "judicial reform." What do you believe are the reasons for the public's low trust in the judiciary, and how should this be improved?

Answer:

Under Article 4, Paragraph 1 of the Judicial Yuan Organization Act, the qualifications for Grand Justices fall into six subparagraphs, including having served as a judge or prosecutor for 15 years or more, as a lawyer for 25 years or more, or as a professor for 12 years or more, while Subparagraph 6 covers those who have "researched law, have rich political experience, and enjoy an outstanding reputation." Nominees who have served as professors for 12 years or more of course prove their qualification through "specialized publications"; judges, prosecutors, and lawyers are naturally assessed not mainly by academic papers but by their experience as judges, prosecutors, and lawyers. Likewise, a nominee who has "researched law and has rich political experience" is assessed not by academic papers but by his legal research and political experience.

From August 1986 to January 2015, I held full-time teaching positions at National Sun Yat-sen University and Chinese Culture University. Setting aside the unreasonable treatment I suffered in promotion in my early years for promoting campus democracy, I have taught courses related to the constitution, such as theory of the state, for nearly thirty years. I have therefore never been out of touch with Taiwan's judicial environment or the development of legal thought, and through participation in various public affairs I have gained a deeper understanding of the relationship between theory and practice.

I will use only the example of "press freedom" to show that "rich political experience" should not be an obstacle to my nomination as a Grand Justice, but rather helps me implement the core values the Constitution seeks to protect in the real workings of society:

In Taiwan's early years, infringements of press freedom came mostly from external interference and restrictions by the party, government, and military. Whether Grand Justices' Interpretation No. 364, which stressed the people's right of "equal access to the media," or Interpretation No. 689, which established that "freedom of news gathering" may not intrude on "individual freedom of movement," they focused on excluding external interference with press freedom, that is, on protecting so-called "external press freedom."

But since Taiwan's transition from authoritarianism to democracy and rule of law, whether in traditional newspapers and broadcast media or in newer cable television and online media, external interference with press freedom has gradually diminished, while infringement from within, that is, interference by media owners (the media bosses) in the "editorial freedom" or "reporting freedom" of their editorial staff, has grown by the day.

Especially in election or political news, media owners often force their journalists to conform to their own political views, so that the constitutionally guaranteed "freedom of the press and of speech" fails to back journalists and instead becomes a "protective amulet" for media bosses, which is extremely harmful to the development of the country's democracy.

Having specialized in constitutional law, I know the true meaning of the Constitution's protection of press freedom, and having long been involved in media work, I fully understand the current media environment and the internal workings of the media. That is how I know that a large part of Taiwan's "press freedom" has yet to be realized.

If we hope that the normative ideal of the Constitution's protection of "freedom of the press and of speech" will be concretely realized in actual political life, my "political experience" should help with constitutional interpretation in the future.

In addition, how my participation in public affairs led the Grand Justices, through Interpretation No. 242, to protect the people's "right to marry" has been explained in Common Question 2 above.

Since first encountering law as a student, I resolved to study constitutional law. While studying in Germany, I wrote my doctoral dissertation on the relationship between "substantive constitutional amendment" and "constitutional rupture." After returning to Taiwan, whether it was the lifting of martial law, the end of the bans on new parties and newspapers, the enactment of the Assembly and Parade Act to protect the freedoms of assembly and association, or the many constitutional amendments that began in the 1990s, I was invited to take part in research and offer my views. I therefore understand well the close relationship between "the actual workings of Taiwan's politics" and "interpreting the Constitution," and am confident I can be a competent interpreter of the Constitution.

2. In 2023 you served as chair of the current President's campaign headquarters. How will you explain to the public that, as Vice President of the Judicial Yuan and a Grand Justice, you can rise above partisan positions and exercise your powers impartially?

Answer:

I have never sought office in my life!

Some question whether the President's nomination of me is a political reward. They fail to realize that Grand Justice nominees must meet certain statutory qualifications, go through certain procedures before nomination, and undergo strict review by the Legislative Yuan after nomination. With the ruling party currently lacking a majority in the Legislative Yuan, winning confirmation is extremely difficult. How can such a rugged and difficult road be called a "reward"?

My political career has spanned different parties, and I am often mocked as a "turncoat," seen as disloyal: disloyal to any particular party, disloyal to any particular ideology.

But is being disloyal to any particular party or ideology not proof that I am "loyal only to professionalism" and "loyal only to conscience"? Should not Grand Justices, charged with guarding the Constitution, be free from the direction of any party or the sway of political ideology?

Whatever party I was in and whatever activities I took part in, upholding "professionalism and ideals" has been my sole principle in public affairs, and this resolve has never changed.

The questioning I recently faced during the Legislative Yuan's review could be called "humiliation," which I had not failed to anticipate. It is precisely because I am confident that, with my constitutional expertise and rich political experience, I can use constitutional interpretation to realize human rights more finely and help the state's organizations operate more maturely, that I accepted the President's nomination as a Grand Justice.