China Times Editorial (Taipei, Taiwan, ROC)
October 27, 2016
Executive Summary: What is done is done. Tsai Ing-wen has nominated pro-Taiwan independence oriented justices. The Legislative Yuan has approved them. They are about to take office. But judicial independence under our constitutional framework means that the justices are not under the President's control. A fuse has been buried, and may be lit any time. We must now see whether the justices themselves believe in constitutionalism.
Full Text Below:
Tsai Ing-wen's nominees for chief justice, deputy chief justice, and other justices of the Supreme Court have been approved by the Legislative Yuan. For Tsai Ying-wen, approval of her Supreme Court nominees was easy. But the real difficulties lie ahead. These difficulties are not merely Tsai Ying-wen's difficulties. They are difficulties for the Republic of China, and for cross-Strait peace.
The first difficulty will be the justices' swearing-in. They must "Swear to be honest, to abide by the laws and regulations of the nation, to serve the nation, avoid waste, avoid abuse of personnel, and avoid corruption and bribery. If I violate my oath, I am willing to accept the harshest possible punishment”. According to the Oath Ordinance, this is the oath the justices must swear upon taking office.
To "abide by the laws and regulations of the nation” refers of course to the Constitution of the Republic of China. According to the preamble of the Constitution, the justices must serve "the Republic of China founded by Sun Yat-sen”. That refers to the Republic of China founded in 1911 following the revolution led by Sun Yat-sen. Its flag is the “blue sky, white sun, red earth” flag, per Article 6 of the Constitution. Its historical territory is defined by Article 4 of the Constitution. It is important to note that the oath is not merely a matter of conscience, but of the law. Under the law, an oath is not merely a pro forma ritual. According to Section 8 of the Oaths Ordinance, if one refuses to take the oath, one may not take office. According to Article 9, "Anyone who takes the oath only to violate it, shall be punished in accordance with the law."
Will Hsu Chung-li, Hsu Chi-hsiung, Huang Chao-yuan and other justices swear to abide by Sun Yat-sen's Constitution? Will they swear to serve the Republic of China? Or will they merely pay lip service to serve the nation, while secretly clinging to such notions as "special state-to-state relations", "not a normal nation" and "domestic consumption and nostalgia"?
The new justices who are sworn in may say one thing while thinking another. But even if they get away with this, they face an even tougher hurdle -- fears that the new justices will use constitutional interpretations to smuggle their personal Taiwan independence thinking into the Republic of China's constitutional framework. If the new justices abuse their power in this manner, three betrayals and one disaster will follow.
The first betrayal, needless to say, would be the betrayal of the Republic of China and its Constitution. The second betrayal, would be the betrayal of President Tsai Ying-wen, who nominated them. They would change the status quo that Tsai Ing-wen repeatedly pledged to maintain. The third betrayal would be exceeding the justices' authority, as noted in Interpretation No. 499. In 1999, the National Assembly voted to continue lining their own members' pockets. People demanded a constitutional interpretation. The justices' Interpretation No. 499 ruled that the National Assembly's amendment was unconstitutional. It said, "The fundamental value and purpose of the Constitution is the establishment of a basis for order. If amendment provisions change this, then the Constitutional has efffectively been destroyed, and the amendment provisions have lost any claim to legitimacy".
The Supreme Court justices' Interpretation No. 499 established limits to constitutional amendments. Even constitutional amendments have limits, never mind constitutional interpretations. What is the fundamental value and purpose of the Constitution?
Interpretation No. 499 refers to the “principle of a democratic republic", "the principle of national sovereignty", "the protection of people's rights" and "the principle of the separation of powers and checks and balances". Article 4 of the Constitution of the Republic of China refers to "historical territory", history, statehood, nation-building and sovereignty. These are even more fundamental in character.
The only way to overthrow the Constitution, is to author an entirely new constitution. Such are the limits of constitutional amendments. On this point, those in the know are concerned. They would remind Taiwan independence oriented justices. Do not abuse the process of constitutional interpretation. Do not use it to violate the Constitution. Do not use it to make substantive changes to the Republic of China's constitutional history and founding spirit, in order to covertly author a new constitution.
If the new justices are bent on extremism, they will bring about a catastrophe that crosses the line in the sand over to de jure independence. The CCP leadership must then bow to nationalist sentiment on the Mainland. This means disaster for Taiwan, disaster for both sides of the Strait, and disaster for the Chinese nation.
Faced with public doubts, the justices must be prudent during their swearing-in. They must publicly declare that they will never to use the constitutional interpretation process to smuggle their personal Taiwan independence ideology into the Republic of China constitutional framework, in order to implement de jure Taiwan independence. Also, when interpreting the Constitution, the justices must exercise restraint on major political issues that bear on the territory of the Republic of China, as per Constitutional Interpretation No. 328. They must have the restraint and wisdom not to abuse their judicial authority to interpret the Constitution.
What is done is done. Tsai Ing-wen has nominated pro-Taiwan independence oriented justices. The Legislative Yuan has approved them. They are about to take office. But judicial independence under our constitutional framework means that the justices are not under the President's control. A fuse has been buried, and may be lit any time. We must now see whether the justices themselves believe in constitutionalism.