Is Someone Who Refuses to Recognize the Constitution Qualified to Interpret the Constitution?

Is Someone Who Refuses to Recognize the Constitution Qualified to Interpret the Constitution?
United Daily News Editorial (Taipei, Taiwan, ROC) 
A Translation 
October 21, 2016

Executive Summary: The Legislative Yuan has recently been reviewing nominees for chief justices of the Supreme Court. During questioning, two striking phenomena have appeared. First, some nominees have raised questions about abolishing the death penalty or gay marriage. These are sensitive issues that depart from current social norms. Secondly, some nominees have not been shy about their views on national identity, and their hostility toward the existing constitution and political framework.

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The Legislative Yuan has recently been reviewing nominees for chief justices of the Supreme Court. During questioning, two striking phenomena have appeared. First, some nominees have raised questions about abolishing the death penalty or gay marriage. These are sensitive issues that depart from current social norms. Secondly, some nominees have not been shy about their views on national identity, and their hostility toward the existing constitution and political framework.

Of the two, the latter is far more worrisome than the former. Many members of the public cannot accept the abolition of the death penalty or the legalization same-sex marriage. But education, social movements, even legislation, could lead to gradual change. Many nominees personally favor the abolition of the death penalty. This does not necessarily reflect the imminent abolition of the death penalty by the Conference of Justices. After all, the Conference of Justices involves prolonged debates, and not a summary judgment.

What is truly questionable are the nominees who refuse to recognize the existing constitutional framework. How can they be considered qualified to interpret the Constitution? The main duty of a chief justice is to interpret the Constitution, or offer a unified interpretation of conflicting laws, procedures, and orders. If a chief justice is in fundamental disagreement with the design and spirit of the Constitution, or worse, regards the Constitution with contempt, how can he or she be considered qualified to interpret the Constitution?

Consider recent reviews. Hsu Chung-li, a justice and chief justice nominee, shared his view on cross-Strait relations. He believes, now as in the past, that relations between Taiwan and the Mainland are akin to relations between East and West Germany, that they are "special state-to-state relations". He believes that the sovereign territory of the Republic of China does not include territory controlled by the People's Republic of China. This view is the "two-states theory". It contradicts the spirit of the Constitution of the Republic of China. It even contradicts President Tsai's position as expressed in her inaugural address. The MAC was quick to dismiss it. This added to the controversy over Hsu Chung-li's nomination to justice and chief justice.

Among the nominees for chief justice, the most difficult to accept is that of Hsu Chi-hsiung. During his review, Hsu said, "People cannot violate their consciences". He said “The Three People's Principles is problematic". He even said that Taiwan is not a normal nation, that the Republic of China is a "discarded" nation, and that Taiwan needs a new constitution, as soon as possible. When referring to "historic territory" as stipulated in the Constitution, he was even more contemptuous, and wondered whether it referred to territory fought over during the "Yellow Emperor's war with Chi You". Nominee Huang Chao-yuan, not to be outdone, said the name “Republic of China” was “mere nostalgia", and that he already had his fill of singing the national anthem.

As legal scholars, these people are free to hold whatever political views they wish. But will these candidates for chief justice be interpreting a constitution for which they have nothing but disdain? How can they possibly be considered qualified to do so? How can they do anything, other than add to the nation's troubles and fragmentation?

The parable of “The Father and Son Riding a Donkey” warns against the folly of trying to please everyone. Tsai Ing-wen appears to have forgotten this lesson. She has lost control of the nomination process for justices and chief justices. President Tsai's initital nominees for chief justice and deputy chief justice were Hsieh Wen-ting and Lin Ching-fang. They were not outstanding, but they were at least qualified. Green camp elements however, were unhappy, and forced the two candidates to withdraw. Tsai Ing-wen then nominated Hsu Chung-li, who may have violated the constitution, as president of the Judicial Yuan. In fact, Hsu Chung-li himself admitted that during the first wave of nominations, he was supposed to be vice president of of the Judicial Yuan under Hsieh Wen-ting. But because a second term was unconstitutional, Hsieh was forced to withdraw. During the second wave of nominations, Hsu Chung-li was nominated president of the Judicial Yuan. The government again argued on behalf of a second term. It assumed that the issue of constitutionality could be interpreted however it wished. These nominations, rammed through by force,
have led to the absurdity of “violators of the constitution interpreting the constitution”.

We do not understand why President Tsai was willing to risk nominating judges who are obviously ineligible. Was it merely impetuousness and imprudence? Was it merely to pander to the green camp? Was it a deliberate attempt to showcase her own political ideals? Whatever the case may be, most nominees hailed from the Ministry of Justice and certain law firms. They represent inbreeding within the legal community, even political factionalism. In the event these people, good and bad alike, pass muster, the Constitution will fall into their hands. What will it look like after it is butchered? One cannot help but worry.

A good judge can endow the Constitution with broader and more profound significance. But a biased judge will be seen as a tool by which President Tsai carries out "judicial Taiwan independence."

不認同憲法的人，如何負責釋憲？
2016-10-21 聯合報

立法院最近正就大法官提名人進行資格審查，在詢答過程中，出現了兩種引人注意的現象：其一，有些被提名人就敏感的社會議題如廢死或同性婚姻提出了高於社會現狀的寬容見解；其二是，有些被提名人毫不避諱大談自己的國家認同，對現行憲法內容或體制表示不以為然，甚至覺得難以苟同。

這兩種現象，後者遠比前者更值得憂慮。以目前的社會民意，許多民眾對於廢死或同性婚姻的合法化雖仍不能接受；但是，透過教育、社運乃至立法、釋憲的思辨過程，不無逐漸改變的可能。多位被提名人傾向支持「廢死」，是其個人態度之表達，未必代表大法官會議很快就會作成廢死之解釋；畢竟，大法官會議的討論仍必須經一番唇槍舌劍，不致率爾作出決定。

真正令人存疑的，則是那些顯不認同既有憲政體制的人，究竟有何資格擔當「解釋憲法」的工作？大法官的職責，主要就是在解釋憲法，或對發生衝突的法律、程序、命令等作出統一解釋。若有大法官基本上就對這部憲法缺乏認同，或對若干憲政設計或精神不以為然，甚至不掩其輕蔑；我們很難想像，這種人如何可能適當扮演解釋憲法的角色？

從近日的審查看，大法官暨司法院長提名人許宗力談到他對兩岸關係的看法，認為就像過去的東西德，是「特殊的國與國關係」，中華民國主權不包容中華人民共和國。此一看法，被認為是主張「兩國論」，除不符中華民國憲法精神，甚至違背蔡英文總統在就職演說中的立場，連陸委會都急忙撇清。此舉，使許宗力原本即備受爭議的司法院長提名，又更添一筆。

在所有大法官提名人中，最讓人難以接受的，是許志雄。他在詢答中一路語出驚人，諸如：被詢及願不願意唱國歌時，他稱「人不能違背良心」，他認為「三民主義有問題」。他甚至直言，台灣「不是正常國家」，「中華民國」是被中國「廢棄」的國號，台灣需要一部合時合用的新憲法。在談到憲法規定的「固有疆域」時，他更譏誚說，是指「黃帝大戰蚩尤」時的疆域嗎？黃昭元的表現絲毫不輸，他曾說中華民國稱號只是為了「滿足鄉愁」，並說他唱國歌的「配額」已經用完了。

作為法律學者，這些人持什麼政治理念，是他們的個人自由。但是，這樣的人若要扮演大法官來解釋他們所不屑的憲法，我們看不出他們可能稱職的理由，而且恐怕只會更增國政的紛擾和割裂。

蔡英文提名大法官及司法院長的過程變化再三，除露出「父子騎驢」式的心態，她的提名似乎也在爭議中逐漸失去沉穩與平衡。蔡總統首度提名的司法院正副院長人選謝文定、林錦芳，原非出色，但亦無不妥；卻因綠營人士不滿，而以跡近羞辱的方式迫使兩人退出提名。其後，蔡英文改提有違憲疑慮的許宗力為司法院長，事實上許宗力也自承，在首波提名中他原本要作為謝文定的「副院長」搭檔，卻因有「連任」的違憲之虞而放棄。但在第二波提名，許宗力反被提名為「司法院長」，府方更強以「再任」曲為辯解，以為合不合憲問題可全憑一己主觀認定。如此一來，這樣硬拗的提名，又更埋下「違憲者主導釋憲」的爭議火種。

我們不明白蔡總統為何甘冒大不韙提名那些顯不適任的大法官，這究竟只是行事急躁、粗疏所致，或者單純出於討好綠營，或是故意藉此凸顯自己的政治理念？無論如何，從這些提名人選多半出自司改會及特定律師事務所看，不僅被法界質疑為「近親繁殖」，甚至是特定政治派系人馬。萬一這些人不分良莠全數過關，未來國家憲法落在他們手裡，會被宰割變成什麼面貌，不能不令人擔心。

好的大法官，可以賦與憲法更博大、深邃的內涵；但偏執的大法官，則會被外界解讀為蔡總統遂行「司法台獨」的工具。