Justices Cai Zongzhen, Yang Huiqin, and Zhu Fumei refused to participate in the deliberations of the Constitutional Court. After the judgment, they continued to issue separate legal opinions in the name of the justices, arguing that the composition of the five-member court was illegal and the judgment was invalid. The mutual negation of the official judgment and the extra-procedural opinions of the current chief justice not only leaves the people at a loss as to what to do; if the chief justice takes the lead in forming a practice, it will also be difficult for other judges to issue other opinions after the judgment in the future, and it will be difficult for the judiciary to follow consistent standards.
Cai, Yang, and Zhu believed that there were only 8 current justices, which did not meet the threshold of at least 10 people participating in the review under the Constitutional Procedure Law, so they refused to review the case. The other 5 people believed that if 3 people were continued to be included in the current total, the Constitutional Court would not be able to exercise its powers, so under extreme exceptions, 5 people would continue to review and make a judgment. However, the legal position of the three justices in refusing to comment and how they speak to the outside world after the verdict are two different things.
Please read on...
The Constitutional Court already has a system for accommodating different opinions. If the justices object to the main text or reasons, they can submit a joint or dissenting opinion and announce it together with the judgment. Cai, Yang, and Zhu denied that the five-member tribunal was legally established, and were naturally unwilling to acknowledge the existence of the judgment with a formal "dissenting opinion." However, the three people still expressed opinions in the name of the justices outside the judicial proceedings, arguing that the judgment was of course invalid. This was no longer a dispute between the majority and the minority within the judgment, but two sets of legal judgments that negated each other.
According to the Interpretation No. 185 of the Judicial Yuan and Article 38 of the Constitutional Procedure Law, the Constitutional Court's judgments are binding on all agencies and the people. The people must abide by the official judgments, but when they see three current justices claiming that the judgments are invalid based on their titles, they are inevitably confused about which one should prevail, and their trust in the judiciary will be shaken.
Judicial power does not have a direct basis of public opinion conferred by votes. Its authority mainly comes from constitutional authorization, due process and the trust of the people. Only by gaining public trust can judicial decisions have the power to check and balance executive and legislative powers, so that the separation of powers can be truly implemented. Nowadays, the current justices have different opinions on whether the judgment is valid. This affects not only a single case, but also the credibility of the judicial power itself.
In addition, ordinary court judges can, in principle, only state their opinions during the deliberation process when faced with the results of the collegial process, and are bound by the confidentiality of the deliberation. If the practices of the three judges are deemed acceptable, can other judges also refuse to comment in the future, and then give other opinions with the title of judge after the judgment? The judiciary must also have consistent standards; otherwise, those who have withdrawn from the procedure will have more room to speak than those who abide by the procedure.
The "Measures for the Implementation of Self-Discipline for Justices of the Judicial Yuan" require justices to properly exercise their powers, be cautious in their words and deeds, and avoid damaging the judicial image. Although the three justices are facing an unprecedented composition dispute of the Constitutional Court, if they do not clarify the boundaries of speaking outside the referee's position, it will not only leave the people confused, but also be unfair to other judges who still abide by the rules within the judicial process, and will also lose their consistent standards.
