Constitutional Law and Constitutional Interpretation
What the section tests
Constitutional law questions ask you to apply the Constitution of the Republic of China (Taiwan) and the binding interpretations of the Constitutional Court (司法院大法官) to a concrete measure. You need the architecture of Art. 23, the proportionality test, and the accepted methods of interpretation.
Core rules
- Supremacy: statutes and administrative acts conflicting with the Constitution are void; ordinary courts must interpret law consistently with the Constitution and may seek an interpretation.
- Art. 23: restrictions on rights require a statute (法律保留), a legitimate aim (rights of others, imminent danger, social order, public welfare), and necessity.
- Proportionality: suitability, necessity (least restrictive means), and balancing; the essential content of a right cannot be erased.
- Methods: text, system, history, purpose, and constitutional-conformity interpretation; interpretations bind all state organs.
- Amendment review: Interpretation No. 499 permits review of amendments for procedural defects and violation of the free democratic constitutional order.
Worked example
A statute bans all demonstrations within 500 metres of hospitals at all hours. Step 1: statutory basis? Yes. Step 2: aim? Public health and order - legitimate. Step 3: suitability? Yes, it reduces noise. Step 4: necessity? No: distance-and-time rules, noise limits, or permit conditions are less restrictive. Step 5: balancing? The blanket ban also removes the essential content of assembly. Conclusion: unconstitutional.
Traps
- Treating proportionality as one step rather than three.
- Accepting an administrative regulation as sufficient statutory basis.
- Confusing constitutional review with administrative litigation.
- Assuming interpretations are merely advisory.
- Forgetting that a restriction must be expressed with sufficient clarity.