Nominee Ch'en Yün-ts'ai's Response—The Judicial Reform Observer Alliance's Fifteen Questions to Nominees

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• 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:

(1) Criminal Procedure and the Protection of Human Rights

My area of expertise is the comparative study of criminal procedure systems. Criminal procedure is closely bound up with the protection of fundamental constitutional rights; it can be called "the seismograph of the constitution" and "applied constitutional law." Of the Constitutional Court's judgments in 2022 and 2023, about 30% related to criminal law, which illustrates the point.

Although Taiwan's criminal procedure has undergone many amendments large and small, many issues still need review and improvement. The fundamental rights issues of greatest concern to me are set out below, divided into the investigation stage and the trial stage:

1. Investigation

For example, at the legislative level: how to categorize the protective requirements of investigation confidentiality and give them real effect; the dispute over prosecutors' continued power to decide on their own compulsory measures such as compelled appearance, wanted notices, and seizure of potential evidence; and the problem of excessively long pretrial detention. As for trial: whether the Code of Criminal Procedure should, like the Citizen Judges Act, adopt the principle of filing only the indictment without the case file; whether second-instance appeals should adopt ex post review; and whether to adopt a pyramid-shaped litigation structure with strict review of law at third instance. All of these await continued work by the judicial authorities and the Legislative Yuan on amendments aimed at realizing the two great guarantees of due process under Article 8 and the right of access to the courts under Article 16 of the Constitution.

Because the Constitutional Court Procedure Act has introduced the new system of "constitutional review of judgments," parties who receive unfavorable judgments based on evidence obtained through investigative measures that rest on incomplete investigation laws or disputed legal bases may, once the case is final, petition the Constitutional Court to declare the relevant legal norms or the judgment unconstitutional. In addition, with internationalization, advanced information technology, and increasingly organized crime, investigative agencies have a growing need to use new technologies as investigative tools; but because these often intrude on informational privacy, they are highly controversial and will gradually become an important issue of normative or judgment review that the Constitutional Court must address.

The disputes over investigation confidentiality mentioned above concern the interpretation of the exception in Article 245, Paragraph 3 of the Code of Criminal Procedure, "where necessary under laws or regulations, or to safeguard the public interest or protect lawful rights." From the standpoint of protecting constitutional rights, it is necessary to apply the principle of proportionality as the standard for weighing the three interests protected by investigation confidentiality—"realizing the presumption of innocence and ensuring the defendant's right to a fair trial," "protecting individual privacy and other rights," and "safeguarding the state's power of prosecution"—against the conflicting interests of "press freedom" and "the public's right to know" that are restricted by non-disclosure. That is, in each case, an overall judgment should weigh whether disclosure complies with proportionality, whether the content is identifying, and whether it infringes individual reputation, privacy, or the defendant's right to a fair trial. As a fundamental solution, I suggest establishing a principle of appropriate disclosure under a spokesperson system, expressly specifying the categories that may not be disclosed, and implementing an accountability mechanism for violations of investigation confidentiality.

2. Trial

Regarding trial proceedings, my greatest concern is whether proceedings under the Citizen Judges Act can ensure that defendants receive a fair trial.

The current Citizen Judges Act provides that parties may not file an interlocutory appeal against the selection of citizen judges, allows prosecutors in certain exceptional circumstances to refuse to disclose the investigation file and evidence to defense counsel, and restricts parties from requesting the examination of new evidence on appeal at second instance. Because these provisions concern the constitutionally guaranteed right of access to the courts and to a fair trial, they will inevitably become focal points of dispute.

These questions about restricting parties' opportunities to appeal or their right of defense must be examined, respectively, from the standpoints of whether the composition of the citizen judge panel can ensure a fair trial, whether evidence that could exonerate or mitigate the defendant's guilt is made available for the exercise of the defense, and the substantive guarantee of due process such as the right to examine witnesses, reviewing whether the contested norms are necessary and comply with proportionality.

3. Taiwan's Code of Criminal Procedure has been amended many times mainly with reference to Japan's criminal procedure system, and the Citizen Judges Act that took effect last year is likewise modeled on Japan's saiban-in (lay judge) system. To steer both the law and the practice of Taiwan's criminal procedure toward concrete constitutionalization, if given the opportunity to serve as a Grand Justice on the Constitutional Court, I will draw on my long-standing expertise in the comparative study of Taiwanese and Japanese criminal procedure, keep an open mind, and, taking constitutional due process as the core principle for protecting fundamental rights, review whether contested norms or judgments are constitutional by examining the scope of protection of the relevant rights, the content and degree of interference or restriction, and whether it can be justified.

(2) Collective Rights of Minority Groups

Under Articles 59, 60(5), and 61(1) of the Constitutional Court Procedure Act, a person who petitions the Constitutional Court to declare unconstitutional an unfavorable final judgment, or the legal norm it applied, must specify the constitutional provisions or constitutional rights involved, and the case will be accepted only if the Court finds it to be of constitutional importance or necessary to realize the petitioner's fundamental rights.

With economic globalization, rapid technological development, and social and environmental change, environmental rights, the protection of minority groups' collective rights, and distributive justice in resources have successively emerged as new issues. How to protect the fundamental rights of groups disadvantaged by economic, social, or environmental change deserves attention and may in the future become a subject of Constitutional Court review from the standpoint of constitutional rights.

Regarding the scope of protection of the catch-all clause in Article 22 of the Constitution, I generally agree with the approach of recent Grand Justices' interpretations, such as No. 748 protecting the freedom of persons of the same sex to marry and No. 803 on indigenous cultural rights, which value and protect human dignity and multicultural values while taking account of trends in international human rights law, expanding the Constitution's protection of the fundamental rights of minority and disadvantaged groups.

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:

1. Engaged in the comparative study of criminal procedure, I have long worked to use the concept of "due process of law" as a bridge between the Constitution and criminal procedure, examining the normative significance and concrete content of the "procedure prescribed by law" in Article 8 of the Constitution for criminal proceedings. I have written commentaries on, or discussed at conferences, Judicial Yuan Interpretations Nos. 384, 392, 436, 582, 654, 664, 665, 670, 737, and 775, offering, from a scholar's standpoint, my views or suggestions on the holdings of each interpretation, the soundness of the reasoning in the explanatory notes, and their ripple effects.

2. In my present capacity as a Grand Justice nominee, I respect the views expressed in the Grand Justices' interpretations and Constitutional Court judgments already rendered, and it would not be appropriate for me to state directly what different conclusion or line of reasoning I would take on any particular interpretation or judgment.

Speaking generally, however, on the question of the position and limits of the Constitutional Court's constitutional review: in essence, the Constitutional Court's exercise of constitutional review is a constitutional mechanism expressly established in the Constitution by its framers, entrusted by the whole people, just as the Legislative Yuan, composed of legislators elected by the people, is the state's highest legislative body. Both are constitutional institutions and powers directly guaranteed by the Constitution to safeguard the free and democratic constitutional order; each performs its own duties, they respect each other, and together they fulfill the function of separation of powers and checks and balances. The power of constitutional review conferred on the Grand Justices is a self-protective function built into the Constitution, to keep the core values of a free and democratic constitutional order—popular sovereignty, separation of powers, and protection of fundamental rights—from erosion.

Further, besides understanding public opinion, Grand Justices should at the same time stand in their role as guardians of the Constitution and appropriately play the checking and supervisory role a constitutional institution should. As to its limits, I believe the main approach should be, with regard to the two dimensions of maintaining the separation of powers and protecting fundamental rights, to distinguish whether the constitutional rights or public interests involved in a case concern disputes over separation of powers and checks and balances or infringements of fundamental rights; then to examine the correctness of the legislative facts underlying the norm or its necessity and whether highly political questions are involved; and in turn, depending on the type, scope, and degree of the interference with or restriction of fundamental rights, the purpose of the restriction, the relationship between means and ends, the necessity of the restriction, and proportionality in the narrow sense, to apply differing standards or intensities of review.

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:

(1) One Should Not Cling to Particular Preconceptions or Fixed Positions

Indeed, for a legal scholar engaged in long-term research, forming views or positions on particular points through legal reasoning, based on one's own values or ideals, views one considers reasonable and appropriate, is the scholar's task and the very basis of scholarship; one might even say that a scholar without that proper backbone would lose the soul of scholarship.

When serving as a Grand Justice interpreting the objective meaning of the Constitution, one is inevitably influenced by one's own subjective values or ideals. But it must be stressed and affirmed that, because Grand Justices bear the constitutional duty to maintain the separation of powers and protect fundamental rights, in each case brought before the Constitutional Court they should, to uphold the free and democratic constitutional order, act on conscience with an open and inclusive attitude and exercise their powers independently and impartially, without clinging to ideological preconceptions or fixed positions. On the contrary, they should strive to recognize and embrace society's diverse values, listen to different voices and opinions, and, through the process of deliberation, shape the constitutional principles or legal views applicable to the case, and then, as the case requires, present to the public, through the reasons for judgment or concurring or dissenting opinions and with solid argument, the reasoning behind their judgment based on constitutional interpretation.

Incidentally, a Grand Justice's particular thoughts, beliefs, or legal views before or after taking office generally do not, of course, constitute grounds for recusal. Exceptionally, however, in a specific case, weighing the nature and content of the issues, the timing (or setting) and content of the Justice's expressed views, the degree of relevance between those views and the issues, and the extent to which a prejudgment has formed, if the legal views formed outside the proceedings in substance give rise to a risk of unfairness in the judgment, the Justice should still recuse himself or herself to preserve the fairness of the judgment.

(2) How to View the Distance from So-Called Public Opinion or Mainstream Views

Grand Justices should indeed be required to recognize and embrace society's diverse values, listen to different voices and opinions, and shape, through deliberation, the constitutional principles or legal views applicable to the case. But recognizing or embracing "diverse" values does not mean having to accept or adopt "majority" values or "mainstream" public opinion.

After all, democracy is not merely formal majority decision-making; protecting individual liberty and the equal rights of minorities are substantive values inherent in it. Majority rule or decision is not necessarily superior to these substantive values. Since the significance of judicial review includes promoting individual liberty and the equal rights of minorities, even if the outcome of judicial review runs contrary to majority values, so long as it helps promote individual liberty or the equal status of minorities, it protects the core values of free and democratic constitutionalism and accords with the ideals of democracy. The outcome of judicial review therefore need not be seen as conflicting with majority values; rather, by offering persuasive reasoning, it can promote more rational discussion and dialogue in civil society.

• 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:

1. The explanatory notes to Judicial Yuan Interpretation No. 329 state: "The President exercises the power to conclude treaties in accordance with the Constitution; the Premier and the heads of ministries and commissions must submit treaties that should be submitted to the Legislative Yuan to the Executive Yuan Council for resolution; and the Legislative Yuan has the power to resolve on treaties, as expressly provided in Articles 38, 58(2), and 63 of the Constitution. Treaties concluded under these provisions have the same rank as statutes." The question is which should prevail when international human rights covenants incorporated into domestic law conflict with domestic statutes.

2. Article 141 of the Constitution provides: "The foreign policy of the Republic of China shall, in a spirit of independence and initiative and on the basis of the principles of equality and reciprocity, cultivate good-neighborliness with other nations, and respect treaties and the Charter of the United Nations, in order to protect the rights and interests of Chinese citizens residing abroad, promote international cooperation, advance international justice, and ensure world peace." On the literal meaning of "respect treaties," when domestic law conflicts with a treaty, the treaty should take precedence. As for international human rights covenants: the Legislative Yuan approved the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights on March 31, 2009, and the President formally signed the instruments of ratification on May 14 of that year. Although Taiwan is not a UN member, this amounted to declaring to the world Taiwan's determination to pursue human rights standards on a par with modern democracies. The Act to Implement the two Covenants was promulgated on April 22, 2009, and took effect on December 10 of that year, giving the Covenants' human rights provisions the force of domestic law. Article 8 of the Act provides: "Government agencies at all levels shall review the laws, regulations, and administrative measures under their jurisdiction in accordance with the two Covenants, and shall, within two years after this Act takes effect, complete the enactment, amendment, or repeal of laws and regulations and the improvement of administrative measures that do not conform to the two Covenants." This requires competent authorities to amend or repeal domestic laws that do not conform to the Covenants, which also shows that when domestic law conflicts with the ICCPR, the Covenant should be applied with priority.

3. Articles 9, 10, 14, and 17 of the ICCPR regulate arrest and detention in criminal proceedings, deprivation of liberty, treatment in prison, public and fair trials, observance of the presumption of innocence, defendants' legal assistance, protection of the right to appeal, and the principle of ne bis in idem. Taiwan's criminal laws must respond to the ideals proclaimed in the human rights covenants, and continually reviewing domestic law to enrich and raise the substantive content of international human rights is an important task. I also hope that courts at all levels in Taiwan will actively apply the human rights provisions of the two Covenants in specific cases, so that human rights protection in Taiwan accords with the universal values and development trends of international human rights.

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:

1. Article 10, Paragraph 7 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."

2. General Comment No. 6 (2018) on equality and non-discrimination, issued by the UN Committee on the Rights of Persons with Disabilities, states in paragraph 1: "The purpose of the present general comment is to clarify the obligations of States parties in relation to non-discrimination and equality as enshrined in article 5 of the Convention." Paragraph 3 states: "The expansion of anti-discrimination laws and human rights frameworks has led to extended protection of the rights of persons with disabilities in many States parties. Nevertheless, laws and regulatory frameworks are often still imperfect and incomplete or ineffective, or reflect an inadequate understanding of the human rights model of disability. Many national laws and policies perpetuate the exclusion and isolation of persons with disabilities, as well as discrimination and violence against them. They often do not recognize multiple and intersectional discrimination or discrimination by association; do not acknowledge that denial of reasonable accommodation constitutes discrimination; and lack effective mechanisms of legal redress and reparation. ..." "Reasonable accommodation" is defined in Article 2 of the CRPD as "necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms."

3. The Act to Implement the Convention on the Rights of Persons with Disabilities (promulgated August 20, 2014, effective December 3, 2014) provides in Article 2: "The provisions of the Convention protecting the human rights of persons with disabilities have the force of domestic law," and in Article 3: "Laws and administrative measures applying the provisions of the Convention shall refer to the intent of the Convention and the interpretations of the Convention by the UN Committee on the Rights of Persons with Disabilities." The interpretations referred to include the general comments issued by the Committee (according to the legislative explanation). Under these provisions, CRPD General Comment No. 6 is already an interpretive standard that must be referred to when applying the CRPD in Taiwan. General comments are treaty bodies' elucidations of specific provisions; they help in correctly understanding the content of the rights the treaty protects and the values derived from them, and serve as the standard by which treaty bodies assess States parties' compliance with and implementation of the treaty. Therefore, although formally not part of the treaty itself, they in fact have normative effect.

4. The latter part of Article 155 of the Constitution provides: "To the aged and the infirm who are unable to earn a living, and to victims of unusual calamities, the State shall give appropriate assistance and relief," and Article 10, Paragraph 7 of the Additional Articles provides: "The State shall guarantee insurance, medical care, an obstacle-free environment, education and training, vocational guidance, and support and assistance in everyday life for persons with disabilities, and shall also assist them to attain independence and to develop." These set out the principle of assisting the disadvantaged. Article 7 of the Constitution provides: "All citizens of the Republic of China, irrespective of sex, religion, race, class, or party affiliation, shall be equal before the law." The five prohibited grounds of discrimination listed in this article are illustrative rather than exhaustive; differential treatment based on other grounds, such as disability or sexual orientation, also falls within the scope of the right to equality under this article (explanatory notes to Interpretation No. 748).

In my humble view, reasonable accommodation must indeed take into account the objective standard of "disproportionate or undue burden"; if it would impose an undue burden on the party responsible, refusing reasonable accommodation does not necessarily constitute discrimination. However, regarding proof of such undue burden, the "Reference Guidelines on Reasonable Accommodation for Persons with Disabilities" issued by Taiwan's National Human Rights Commission state that the burden of proof lies with the responsible party. I therefore suggest that, as the standard of constitutional review, the presumption of unconstitutionality under strict scrutiny might be adopted. Considering that disability is an unchangeable physical condition bearing on personality development and human dignity, and that persons with disabilities are a minority who can hardly secure protection through ordinary democratic majoritarian processes, review under a strict or heightened standard also accords with the intent of Taiwan's Constitution and the international covenants to protect the human rights of 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:

In my view, whether the amendment procedure and threshold in Article 12 of the current Additional Articles are appropriate, and whether the threshold hinders democracy and the principle of popular sovereignty, should be examined from the standpoint of why the Constitution permits amendment and whether there are limits to amendment. I explain as follows:

(1) The Timeliness of Constitutional Values

As the fundamental law of the state, Taiwan's Constitution regulates state organization and protects fundamental rights, and takes the principles of a democratic republic, popular sovereignty, separation of powers with checks and balances, and the protection of fundamental rights as the core foundation and values of the overall free and democratic constitutional order. But as the conclusion of the explanatory notes to Judicial Yuan Interpretation No. 392 states: "The Constitution is not a static concept; it is nurtured in a continuously renewing process of national growth. Legal choices made on the basis of abstract constitutional provisions regarding existing circumstances cannot exclude problems of application that change as times evolve." Indeed, economic and technological development, changes in social culture and structure, and shifts in the political environment and the international situation can all affect the values or objective meaning of a written constitution enacted long ago, creating a gap between norm and reality.

To fill this gap and allow constitutional values to keep pace with political, economic, and social change, the Constitution itself provides two mechanisms: Grand Justices of the Judicial Yuan to interpret the Constitution, and the permission to amend the Constitution. The former works mainly through the Grand Justices' role as guardians of the Constitution, maintaining the separation of powers and protecting fundamental rights; as the explanatory notes to Interpretation No. 392 state: "The protection of human rights is the highest norm in our present cultural system and the common standard of today's advanced civilized societies. As the normative subject of the Constitution, the people's ideas as expressed in real life, and what tasks they want the Constitution to accomplish, must be given necessary consideration in interpretation and application in light of the value order they reveal." The latter consists of amending the Constitution under Article 174 of the Constitution (before its application was suspended) and Article 12 of the Additional Articles, mainly to regulate directly the powers of highly political constitutional organs and fundamental national policies responding to changing times.

In my humble view, a written constitution's permission for amendment through certain procedures is, in essence, a self-protective measure the Constitution establishes, to be observed in perpetuity, so that its norms remain timely and respond to changing political, economic, and social conditions.

(2) The Limits of Constitutional Amendment

Taiwan's constitutional amendments have always taken the form of adding supplementary articles without altering the main text, with the aim of minimizing changes to the existing constitutional form, which is an appropriate form of amendment. What deserves attention is whether there are limits to the content and procedure of amendment. In conclusion, the question of the limits of amendment also falls within the Grand Justices' power to interpret the Constitution.

1. On amendment procedure: Judicial Yuan Interpretation No. 499 states: "The enactment or amendment of Additional Articles of the Constitution through the amendment procedure must comply with the principle of openness and transparency ... so as to meet the reasonable expectations and trust of the people. ... Amending the Constitution is also a constitutional act; if it has a grave and obvious defect, it does not produce its intended effect. 'Obvious' means the fact can be determined without investigation; 'grave,' with respect to the deliberative procedure, means the defect has caused the procedure to lose its legitimacy, violating the basic norms governing the adoption or validity of amendments."

2. On amendment content: The limits on changing constitutional content established by Interpretation No. 499 rest mainly on the view that if provisions of the Constitution "that are of essential importance and form the foundation of the normative order" could be altered by amendment, the overall normative order of the Constitution would be destroyed and the amended provisions would lose their legitimacy. In other words, the Constitution has foundations on which it depends, which may not be altered by amendment, lest the Constitution be destroyed; hence amendment has its limits, which this interpretation calls the "free and democratic constitutional order." As the interpretation notes, Article 1 (the principle of a democratic republic), Article 2 (the principle of popular sovereignty), Chapter 2 on the protection of the people's rights, and the principles of separation of powers and checks and balances are all of essential importance, and all organs established by the Constitution are obliged to respect the free and democratic constitutional order formed by these provisions.

These views from constitutional interpretation practice show that even when constitutional norms need amendment to respond to changing political, economic, and social conditions, the amendment procedure must comply with the principle of openness and transparency, and the deliberative procedure may not have grave and obvious defects. At the same time, and more importantly, there are substantive limits: the content of an amendment may not destroy provisions "that are of essential importance and form the foundation of the normative order."

(3) Is the Amendment Threshold in Article 12 of the Additional Articles Too High?

Article 12 of the Additional Articles of the Constitution of the Republic of China expressly adopts a double high threshold for amendment: first, a constitutional amendment must be proposed in the Legislative Yuan by a resolution of three-fourths of the members present at a meeting attended by three-fourths of the members; then, when submitted to a referendum, it passes only if the valid votes in favor exceed half of all electors. Of course, given the stability of a written constitution, setting a cautious threshold for amendment has its reasons. But if the threshold is so high that it causes constitutional deadlock or prevents overall improvement of the people's fundamental rights, it will instead harm the protective function of permitting amendment to respond to changing conditions. The 2022 referendum on citizenship at 18, although legislators of all parties had reached a consensus, fell far short of the threshold in votes in favor and failed, which is precisely the result of the constitutional obstacle created by an excessively high amendment threshold.

In December 2016, some legislators, believing the current threshold too high, proposed amending Article 12 to lower it to a proposal by one-fourth of the members of the Legislative Yuan, a resolution of two-thirds of those present at a meeting attended by two-thirds of the members, and passage by a simple majority in a referendum six months after promulgation (Legislative Yuan, 9th Legislature, 2nd Session, 17th Meeting, Document No. 1607, Legislators' Proposal No. 20129). For reference, Article 96 of the Constitution of Japan provides: "Amendments to this Constitution shall be initiated by the Diet, through a concurring vote of two-thirds or more of all the members of each House and shall thereupon be submitted to the people for ratification, which shall require the affirmative vote of a majority of all votes cast thereon, at a special referendum or at such election as the Diet shall specify." Under Articles 98(2) and 126(1) of Japan's Act on Procedures for Amendment of the Constitution, an amendment is formally adopted when it receives a majority of the valid votes cast.

In my humble view, constitutional interpretation practice has already established, for the deliberative procedure and the limits of content changes in amendment, the basic principle of conformity with the free and democratic constitutional order, which can legitimize the amendment procedure and substantively prevent amendments from altering or destroying the foundations of the normative order. Under these conditions, the amendment threshold should not be too high. Whether the threshold in Article 12 of the current Additional Articles is appropriate requires an overall assessment of many political factors bearing on constitutional stability and the feasibility of amendment, and I suggest that the Legislative Yuan, which represents public opinion, carefully assess it within its powers, so as to promote the stable development of Taiwan's free and democratic constitutional order.

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:

1. Supreme Administrative Court Judgment 109-Pan No. 300 is a final judgment on which it would be inappropriate for me to comment. However, restrictions on party standing in procedural law (including administrative, civil, and criminal procedure) are the primary condition for people to seek remedies through litigation or administrative appeals, and whether a strict or lenient standard is adopted is closely tied to the protection of the right of access to the courts under Article 16 of the Constitution. Although the Grand Justices have addressed this issue in the past, mostly in general terms, regarding the relationship between party standing and the right of access to the courts, they have usually interpreted that right as having "as its core the people's ability, when their rights are infringed, to seek judicial remedy through due process, with the state obliged to provide effective institutional guarantees for its concrete realization" (see Interpretations Nos. 512 and 574), and have held that how the right is exercised and implemented and its concrete content can be realized only through laws on court organization and procedure enacted by the legislature (see Interpretations Nos. 396 and 482).

2. As is well known, the provisional measures system in Article 43 of the Constitutional Court Procedure Act codifies Grand Justices' Interpretations Nos. 585 and 599. Its legislative purpose is to preserve the function of the Constitutional Court and prevent future judgments from losing their effect, so such provisional measures may be issued upon petition or ex officio. In applying the system, in light of those interpretations, the Court should weigh the pros and cons according to the statutory requirements, which include: (1) the continuation of the constitutional dispute, the application of the disputed law, or the enforcement in the underlying case; (2) a risk that constitutionally protected rights or the public interest will suffer serious harm that is difficult to remedy; and (3) urgent necessity and last resort. The Constitutional Court should weigh these requirements and, if the benefits of a provisional measure outweigh the harms, grant it, paying particular attention to the "last resort" requirement, that is, considering whether the legal system as a whole has reached the point where there is no other means of prevention.

• 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:

1. Judicial Yuan Interpretation No. 748 held that the freedom to marry bears on the sound development of personality and the protection of human dignity; in terms of the need, capacity, willingness, and longing, both physiological and psychological, to form such an intimate and exclusive permanent union, its indispensability is no different for persons of homosexual or heterosexual orientation, and both are protected by the freedom to marry under Article 22 of the Constitution. Article 7 of the Constitution provides: "All citizens of the Republic of China, irrespective of sex, religion, race, class, or party affiliation, shall be equal before the law." The five prohibited grounds listed are illustrative rather than exhaustive; differential treatment based on other grounds, such as disability or sexual orientation, also falls within the scope of the right to equality under this article. Differential treatment based on sexual orientation should be subject to heightened scrutiny to determine its constitutionality: besides pursuing an important public interest, the means must be substantially related to achieving that end to comply with the right to equality under Article 7. I agree.

2. Regarding the protection of de facto spouses (de facto marriage), both of status and of property, the Civil Code, for example, does not entirely lack protection (for example, "alimony," "household living expenses," "duty of support," and "discretionary allowance from the estate"). In other words, protection of their fundamental rights can hardly be said to be entirely lacking, and the legislature has not been entirely inactive. Whether its legislative action is sufficient, however, requires examining the scope of effect of the constitutional fundamental rights provisions; that is, in designing a system to protect de facto spouses, the legislature's duty to act is measured by the scope of effect of the fundamental rights provisions. As far as I know, France, Japan, and other countries have relevant laws for reference. From a comparative law perspective, Taiwan's legal design appears relatively weak, and in designing the system in the future, the legislature should introduce or adjust such measures in light of Taiwan's circumstances and trends in public opinion.

When state legal norms are insufficient or protection is inadequate, is this so-called "legislative inaction"? Past Grand Justices' interpretations have addressed the review steps in such situations: "The method of constitutional review for insufficient regulation or legislative inaction proceeds as follows: 1. first state the legislative duty to act prescribed by the Constitution; 2. then identify the matter of legislative inaction in the contested provision; 3. then examine which fundamental right protected by the Constitution is contravened by the matter not provided for in the contested provision; 4. then order amendment within a fixed period; 5. finally, specify how the matter is to be handled if the amendment is not completed in time" (see Justice Lin Jiun-yi's concurring opinion in Interpretation No. 813).

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:

1. 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." Taiwan's current social assistance laws include the Public Assistance Act, which provides living assistance and medical subsidies for low-income and middle-to-low-income households, emergency assistance for people in emergencies, and disaster relief for disaster victims, with the goal of helping them become self-reliant; it provides four types of assistance: living assistance, medical subsidies, emergency assistance, and disaster relief. Social assistance related to income is mostly provided under living assistance for low-income and middle-to-low-income households, which are certified by the competent authority of the municipality or county (city) where the applicant's household is registered, based on whether total household income divided equally among household members falls below the minimum living expense per person per month and household property does not exceed the amount announced for that year by the central or municipal authority.

2. Besides Article 10, Paragraph 8 of the Additional Articles, Article 15 of the Constitution also protects the people's right to existence, and the very purpose of social assistance is to help poor people unable to work meet their minimum living needs. Interpretation No. 422 and the three interpretations on pension reform, including No. 781, all take the minimum living expense as a benchmark for whether the people's basic living needs can be maintained.

3. As some civil society groups have pointed out, in reality 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.

In such situations, based on the objective legal function of the right to existence, the state bears a duty to protect, and the competent administrative authority should make a substantive ex officio determination through actual home visits, so as to resolve promptly and effectively the plight of those urgently in need of social assistance. As a matter of legislative policy, amendments should be studied as soon as possible to provide appropriately for beneficiaries' actual assets, income, household burdens, and need for care. If an individual dispute comes before judicial review, I suggest reviewing and deciding it on the specific facts of the case in light of the constitutional provisions above and the holdings of past Judicial Yuan interpretations.

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:

1. According to media reports, civil society NGOs have sued to require the government to amend the relevant regulations under the Renewable Energy Development Act in order to achieve that Act's legislative purpose of reducing greenhouse gas emissions and improving the energy structure in response to climate change. In the resulting administrative litigation, whether the plaintiff civil society groups had a public-law right to demand that government agencies enact regulations became a key issue. In addition, some civil society groups have filed constitutional suits on the ground that the Climate Change Response Act does not specify national medium- and short-term reduction targets or provide standards for the competent authority or the Ministry of Environment to set targets, which plainly violates the legislature's constitutional duty to protect the people's fundamental rights.

2. As a Grand Justice nominee, it would be inappropriate for me to express a view on specific pending cases. Speaking generally, however, under Articles 59, 60(5), and 61(1) of the Constitutional Court Procedure Act, a person who petitions the Constitutional Court to declare unconstitutional an unfavorable final judgment, or the legal norm it applied, must specify the constitutional provisions or constitutional rights involved, and the case will be accepted only if the Court finds it to be of constitutional importance or necessary to realize the petitioner's fundamental rights.

3. Article 10, Paragraph 2 of the Additional Articles provides: "Economic and scientific and technological development shall be pursued with due regard to environmental and ecological protection." Accordingly, the Constitution not only recognizes the important value of environmental and ecological protection but also imposes on the state a duty to actively protect the environment and ecology. Judicial Yuan Interpretation No. 803 held that "the natural ecological environment is the foundation of human survival and sustainable development and is tied to the sound development of the people's life and bodily health; protection of the natural ecological environment is therefore one of the state's important tasks and has long been a common goal of the international community," recognizing the importance of environmental rights, the right to existence, and the right to health (see also Judicial Yuan Interpretation No. 767, among others). Extending the holding of this interpretation, where the destruction of the ecological environment caused by the greenhouse effect resulting from climate change has substantially affected the livelihoods of particular disadvantaged groups (such as farmers and fishers), the state, based on the objective legal function of environmental rights and the right to existence, bears a duty to protect. Besides promoting legislation and policies that strive for environmental and ecological protection, it should also provide appropriate compensation or relief to disadvantaged groups facing livelihood difficulties.

4. However, when government agencies, based on the state's duty to protect, adopt legislative and administrative measures to protect environmental rights or the right to existence, these may on the other hand interfere with or restrict the rights of individuals or businesses, so certain reasonable adjustments are necessary. Questions such as whether current regulation of emission reduction targets in response to climate change is insufficient should, in light of Judicial Yuan Interpretation No. 803 above, be reviewed by weighing the constitutional value of the rights involved and whether the restrictions comply with the principle of proportionality under Article 23 of the Constitution.

• 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:

An individual's own "gender identity" concerns human dignity, the free development of personality, and the right to control one's personal data, and should fall within the core protection of the right of personality under Article 22 of the Constitution. State restrictions on this right must therefore comply with the principles of statutory reservation, proportionality, and equality. On this premise, in light of Interpretations Nos. 748, 794, 802, and 807, the appropriate standard of constitutional review is strict or heightened scrutiny. However, although the "right to sexual autonomy" (see Interpretation No. 791) and what is protected under "gender identity" are both fundamental rights, their scopes of protection differ and cannot be equated.

Because gender identity concerns the legal determination of an individual's gender, and at birth the external features of biological sex serve as the standard for legal determination (household registration), if an individual's gender identity later diverges from the legal designation based on his or her inner self-understanding, the state should, so long as social order and the public interest are not harmed, respect the freedom to determine one's own gender and allow individuals to apply to change their legal gender (that is, the applications for change of registration under Articles 21 and 46 of the Household Registration Act). However, because current law is insufficient, administrative rules have required applicants to undergo sex reassignment surgery and obtain psychiatric evaluations as proof before a change is allowed, which contravenes the principle of statutory reservation and violates the constitutional protection of human dignity and the free development of personality.

• 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:

1. Article 15 of the Constitution guarantees the people's property rights; although the state may lawfully expropriate private property when necessary for public use or other public-interest purposes, it must provide reasonable compensation. Article 1, Paragraph 1 of the Land Expropriation Act provides: "This Act is enacted to implement land expropriation, promote land use, enhance the public interest, and protect private property," making "enhancing the public interest" one of the purposes for which the state may initiate land expropriation. Past Grand Justices' interpretations have also made clear that state expropriation of private property requires "necessity for public use or other public-interest purposes" (see Interpretations Nos. 400, 516, 579, and 652). The explanatory notes to Interpretation No. 409 further state that the clarity and specificity of the purpose and use of expropriation, the standards for weighing the public interest, and factors of urgency should all be expressly provided by law, so that administrative authorities handling expropriation and judicial authorities reviewing its legality have a basis; in particular, before an expropriation plan is finalized, the views of landowners and interested parties should be heard so that public-interest considerations and the protection of private interests can both be taken into account and decision-making made more transparent.

Since land expropriation is the most serious means of infringing the people's property rights, on whether "national economic development" is sufficient as a public-interest purpose for expropriation, I suggest that, in line with the requirement in the explanatory notes to the interpretation above that "the clarity and specificity of the purpose and use of expropriation, the standards for weighing the public interest, and factors of urgency should all be expressly provided by law," the interpretation and weighing of the "public-interest purpose" for initiating expropriation be reviewed under a specific, clear, and strict high standard.

2. If the purpose of the zone expropriation system meets the standard of "necessity for public use or other public-interest purposes" set out in the Grand Justices' interpretations above, and, given the limits of property's social and environmental-ecological responsibilities (explanatory notes to Interpretation No. 400), it complies with the principle of proportionality under Article 23 and the principle of statutory reservation, then as a matter of interpretation the system itself can hardly be said to violate the protections of Article 15 (property rights, the right to work, the right to existence) or Article 10 (freedom of residence). However, because current laws are unclear about the public-interest requirements for zone expropriation, for example what exactly "implementing national economic policy" in Article 212, Paragraph 1 of the Land Act refers to, absent a clear basis in other laws, there is a risk of abuse. In addition, because zone expropriation uses the allocation of land in lieu of compensation and the tender or sale of land to offset development costs, it in practice expropriates more land than the development purpose requires and may result in land expropriated from private owners ultimately being transferred to other private parties. I therefore suggest, in line with the Judicial Yuan interpretations above, setting a high standard for the required "public-interest purpose" and, based on constitutional due process, following rigorous procedures.

3. If the state may assert ownership as a "private party" against people "living" on "state-owned land," this seems to mean that the people constitute "unauthorized possessors under the Civil Code" of "state-owned land," that is, they occupy the land without a legitimate basis for possession. The integrity and maintenance of state land are matters of national importance; allowing occupation to go unaddressed, or yielding to pressure and legalizing it on the spot so that national land is lost, would undoubtedly allow private parties to appropriate state interests, contrary to fairness and justice and even affecting land conservation and public safety. Therefore, unlike the state "expropriating private land" when necessary for public use or other public-interest purposes, people occupying state-owned land without authorization should in principle have no need for possessory protection.

However, unauthorized possession arises for countless reasons; even between private parties, excluding possession and exercising the right to recover property must consider whether there is an abuse of rights (Article 148 of the Civil Code). Between the state and the people, especially given the land registration problems left over from Taiwan's colonial past and the special historical circumstances of the Nationalist government's relocation to Taiwan, there are many disadvantaged occupants, people who failed to register land for lack of knowledge, people occupying land as historical informal dwellings, and people who deserve protection under the principle of legitimate expectations. In removing such residential occupation, the state should not act purely as a private party, rigidly arguing the law for its own sake, but should establish a genuine negotiation mechanism and put negotiation first.

As for solutions, besides considering whether to still pursue unjust enrichment and the costs of demolition and return of the land, the state is all the more responsible for offering feasible assistance and alternatives such as help with resettlement, social housing, and rent subsidies, so that occupation issues can be handled harmoniously and rationally, avoiding or minimizing the social unrest caused by coercive means and reducing the great cost of litigation, in line with the intent of the two Covenants that the right to housing of informal residents should also be respected (see Article 11(1) of the ICESCR, Article 17 of the ICCPR, and paragraphs 13 to 16 of General Comment No. 7 of the Committee on Economic, Social and Cultural Rights). Conversely, residents should also face the fact that they occupy state land without authorization and, while respecting the law, rationally seek the solution most favorable to them.

• 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. Please answer:

(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) Protection of Prisoners' Right of Access to the Courts

1. Article 16 of the Constitution guarantees the people's right of access to the courts. Although prisoners' personal liberty is restricted, their fundamental rights must still be protected, including the right of access to the courts. When prisoners disagree with prison management measures, they should be given channels to seek judicial remedy. Judicial Yuan Interpretation No. 755 held that when a prison disposition or other management measure exceeds what is necessary to achieve the purposes of imprisonment and unlawfully infringes a prisoner's constitutionally protected fundamental rights in a way that is not clearly minor, the prisoner, consistent with the principle under Article 16 that where there is a right there is a remedy, must be allowed to sue in court for relief.

2. Judicial Yuan Interpretation No. 756 pointed out that Article 66 of the former Prison Act provided: "Letters sent and received shall be inspected by the prison warden. If they are deemed likely to disrupt prison discipline, letters sent by prisoners may, with reasons stated, be ordered revised before being sent; letters received by prisoners may, with reasons stated, be directly redacted before being received." Its provisions on reading letters, which drew no distinction among types of letters and took no account of the circumstances of individual cases, allowed the warden to read the content of all letters, plainly imposing an excessive restriction on the freedom of confidential correspondence of prisoners and their correspondents, and to that extent contravened Article 12 of the Constitution protecting that freedom. Under the Prison Act as amended and promulgated in 2020, the requirements for prison staff to open or otherwise appropriately inspect letters sent and received by prisoners for contraband, and to read letters to maintain prison discipline, are now set out in Article 74.

3. Article 91 of the Prison Act provides that prisons may not subject prisoners to discriminatory treatment or punish them on a pretext because they have filed petitions, complaints, or lawsuits. If a prisoner believes prison staff have inspected his letters in violation of Article 74, he may of course file a complaint or lawsuit for relief, and whether or not his objection is well-founded, prison staff may not on that account subject him to discriminatory treatment or punish him on a pretext.

(2) Prisoners' Right to Vote

1. Article 1 of Taiwan's Constitution establishes the principle of a democratic republic and Article 2 the principle of popular sovereignty, adopting a democratic political system. The right to vote protected by Article 17 of the Constitution is one of the people's most basic rights of political participation in a democracy and the core of the people's political rights (Constitutional Court Judgment 112-Hsien-Pan-11). Although prisoners' personal liberty is restricted, their fundamental rights must still be protected, including the right to vote.

2. Deprivation of civil rights under Article 36 of the Criminal Code deprives the convicted person of (1) eligibility to serve as a public official and (2) eligibility to run for public office; it does not deprive him of the right to vote in elections. The current election and recall laws and the Prison Act also do not expressly provide that prisoners lose the right to vote because they are in prison, so the constitutional principle of protecting the people's political rights should govern.

3. In current practice, because prisoners are in prison, their movement is restricted and they cannot go to polling stations themselves, there is no voting mechanism inside prisons, and Taiwan has not yet implemented postal or absentee voting, so although prisoners retain the right to vote, they cannot actually exercise it while incarcerated. For a state bearing a duty to protect fundamental rights, to avoid depriving people of fundamental rights merely because of constraints in the setting of enforcement, it should, while maintaining the fairness and accuracy of elections and overcoming technical and security issues, set up polling stations in prisons or adopt postal voting to ensure that prisoners can exercise the right to vote equally.

• 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:

1. Under the Gender Equity Education Act and related provisions, schools should teach respect for diverse gender differences, uphold human dignity, and eliminate all discrimination based on gender, body, and so on. Under Interpretation No. 784, when students at any level of schooling suffer improper or unlawful infringement, through measures of public authority such as a school's education or management, of their constitutional or other rights, whether the right to learn and to education enjoyed as students or rights enjoyed as ordinary citizens such as bodily autonomy, development of personality, freedom of speech, freedom of religion, or property, they should, under the protection of the right of access to the courts in Article 16 of the Constitution, be allowed to bring administrative litigation for relief, without distinction on account of their status as students.

2. Of course, under the principle of the rule of law and to maintain legal stability, a final administrative disposition that has not been lawfully revoked or repealed and has not otherwise lost effect remains in force; an administrative disposition for which the statutory period for remedies has passed can no longer be changed or revoked through administrative appeal or administrative litigation. However, to protect more important fundamental rights and ensure the legality of administrative dispositions, the law still expressly allows administrative agencies to revoke, repeal, or change them, in keeping with the spirit of the rule of law. Article 117 of the Administrative Procedure Act provides: "After the statutory period for remedies has passed, the original disposing agency may, ex officio, revoke an unlawful administrative disposition in whole or in part; its superior agency may also do so. However, revocation is not permitted in any of the following circumstances: 1. revocation would seriously harm the public interest; 2. the beneficiary does not fall within the circumstances listed in Article 119 in which reliance is not worthy of protection, and the beneficiary's reliance interest in the administrative disposition conferring the benefit clearly outweighs the public interest that revocation would serve."

3. For the dispute raised in this question, I suggest reviewing and deciding it on the specific circumstances of the case in light of the constitutional interpretations, relevant laws, and judgments above.

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:

Whether from the standpoint of incorporating international conventions into domestic law, such as the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the ICCPR, the ICESCR, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention on the Rights of the Child (CRC), and the Convention on the Rights of Persons with Disabilities (CRPD), or from a comparative law perspective (including the United Kingdom, Sweden, and Canada), building a general, comprehensive anti-discrimination law has become one of the important legal infrastructures of a modern rule-of-law state. I welcome the enactment of an Anti-Discrimination Act in Taiwan.

The draft Anti-Discrimination Act already has considerable legislative density in its definition of discriminatory acts, the areas it regulates, and the requirements for remedies. However, regarding the many recent suggestions in public opinion, including that the competent authority is unclear, administrative regulatory provisions are lacking, hate speech is not included as discriminatory conduct, and there are too many exceptions to discriminatory conduct, and whether these might leave disadvantaged groups insufficiently protected or lead to unreasonable differential treatment in violation of the "principle of equality," I suggest that in the future legislative process the legislature handle them carefully and adopt clear and comprehensive provisions, so as to avoid disputes over constitutionality.