揭開大法官會議的神秘面紗：以政治檔案為中心

Demystifying the Council of Grand Justices

不論是好是壞，大法官解釋深刻地形塑了臺灣的憲政發展。過去由於司法獨立與評議保密，我們無從得知大法官如何作成解釋，但隨著部分解釋檔案的解密，這個情形已經有所改善。本文爬梳所有已公開、且被歸類為政治檔案的解釋卷宗，完整呈現一個聲請案從收案到作成解釋的過程。在這個過程中，本文發現不論是受理階段、實質審查階段、甚至是解釋作成後的意見書公布階段，大法官經常考慮（憲）法規範以外的因素。更具體地說，大法官進行解釋時，除了受到個人背景的影響之外，還會考量社會環境、政治因素、機關互動、以及人民期待。透過這些卷宗資料，我們不但能了解臺灣大法官的司法行為，更能全面地評價大法官會議、甚至是個別大法官，在臺灣憲政發展過程中，所扮演的角色。

For better or for worse, the Judicial Yuan Interpretations have deeply shaped the contours of constitutional landscape in Taiwan. Due to judicial independence and confidentiality, outsiders do not know how the justices reached their conclusions. This situation has changed as the Judicial Yuan has declassified 83 dossiers of the decisions in recent years. All these decisions were rendered by the Council of Grand Justices. These decisions were chosen because they involved transitional justice, national mobilization, martial law, and social reconciliation. Therefore, most of these decisions are highly political in the sense that they involved the legitimacy of the authoritarian regime, the evaluation of the government’s performance, and the blatant violation of constitutional rights.
Based on these documents, this paper reveals the decision-making process of the Council of Grand Justices that was shrouded in mystery. Furthermore, this paper suggests that the Justices would consider extralegal factors, such as the sociopolitical environment, inter-branch relations, and people’s expectations, when they interpreted the constitution. Specifically, political factors included the government’s policies, the dictator’s preferences, and the political atmosphere. Social factors included the capacity of courts, transportation, the quality of legislators in local councils, and lifespan. As to inter-branch relations, this paper focuses on the interaction between the Council of Grand Justices and the Control Yuan as well as between the Council and the Taiwan Supreme Court. Finally, the dossiers revealed that the justices did take public opinion into account during their deliberation, although it might not be the decisive element. Over time, however, it has become increasingly important after democratization. Thanks to these materials, we can not only understand judicial behavior but also evaluate the role of the Council, if not any individual justice, in the history of constitutional development in Taiwan. As the dossiers demonstrate, there were some liberal votes cast even during the authoritarian period. Unfortunately, given the supermajority threshold, these liberal justices were easily outvoted.