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The Constitutional Courts as Positive Legislators? Focusing on the Declaration Modes of Unconstitutionality of Legislation
Constitutional Court,Grand Justices,Positive Legislator,the Declaration Modes of Unconstitutionality,Judicial Lawmaking,Separation of Powers,Declaration,Judicial Review,Implementation,
|Publication Year :||2019|
Defining and separating the authority of constitutional courts and legislators has always been a difficult issue in the realm of judicial review, and it is all the more problematic when the declaration made by the Grand Justices contributes to the formation of legal norms. In response, this thesis focuses on such declarations where interpretation is in place of legislation, while analyzing and reviewing whether this declaration mode is ultra vires from the perspective of the separation of powers. The core research question is as follows: is a constitutional court entitled to contribute to the formation of legal norms as a positive legislator? If the constitutional court is entitled, how should the Grand Justices act in such a role?
To answer this question, the thesis first establishes the authority of constitutional courts, i.e. the Grand Justices’ authority to protect citizens’ fundamental rights and ensure the separation of powers. As constitutional court, the Grand Justices not only resolve disputes as a judiciary, but are also constitutionally entitled to ensure the Constitution is the binding fundamental principles. Based on this dual role, the implementation interpreted by the Grand Justices means more than a execution made by the court (the narrow definition); instead, it signifies the fulfillment of the judgment in a constitutional court, i.e. the implementation of constitutionality. From a perspective of objective law, it is a “de facto” maintenance of constitutional order; from a perspective of subjective right, it is a “practical” guarantee of the citizens’ fundamental rights. Hence, to make sure the Constitution serves as the binding fundamental norm instead of mere words, the Grand Justices shall be entitled to effectively remove unconstitutional violation so as to retain constitutionality.
Furthermore, the thesis probes into the question whether the judiciary’s entitlement to form legal norms is compatible with the principle of separation of powers. From a functional model perspective, known as “funktionell-rechtlicher Ansatz” in German, separation of powers is to ensure the decisions regarding the state are formulated as correctly as possible, so as to implement the protection of fundamental rights. Hence, state agencies are allowed to share authorities and collaborate; however, it does not mean that boundaries do not exist among powers. The constitutional agency can functionally retain its designated authorities and duties without overriding other agencies. As a declaration, which serves as judicial lawmaking, is made by the Grand Justices, legislators are still entitled to form and amend the laws, and this ensures their dominance in the field of legislation. Hence, the Justices’ entitlement to form legal norms is not in violation with the separation of powers. Nevertheless, when the declaration made by the Grand Justices overpowers the legislators, either for a long term or permanently, the constitutional courts will be accused of violating the principle of separation of powers, and this leads to the second tier of the research question, i.e. how should the Grand Justices act as a positive legislator?
In this regard, this thesis analyzes cases in which declaration is made by the Grand Justices and serves as judicial lawmaking and organizes such cases into five parts based on its observation of Taiwan’s judicial practices. By comparing these cases with similar ones, the research analyzes the possible reasons which may influence the Justices’ decision to formulate a declaration. By analyzing and justifying such reasons, the researcher attempts to deduce possible patterns, which can serve as standards to examine the Justices’ legitimacy in making a declaration which acts as judicial lawmaking in the future.
Last but not least, the research concludes all the patterns and standards to develop a modus operandi similar to proportionality, i.e. different tiers of review targets that examine the correlation between “declaration as judicial lawmaking” and “protection and implementation of basic rights” while restructuring the categorization of declaration modes of unconstitutionality. By means of establishing a judicial review model, the researcher aims to offer a set of standards to examine whether the Justices have violated the principle of separation of powers in such cases.
|Appears in Collections:||法律學系|
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