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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

Constitutional Court of Taiwan (Judicial Yuan)

Taiwan (disputed) [tw]

Wen-Chen Chang

Subject(s):
Judicial review — Powers and jurisdiction of constitutional courts/supreme courts — Judicial power

Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.

A.  Introduction

1.  Taiwan’s Constitutional Court, also known as the Council of Grand Justices, stands as one of the oldest constitutional courts in the world. Established in 1948 under the Republic of China Constitution (hereinafter ROC Constitution or Constitution), the Constitutional Court has been confronted with challenges in the ensuing periods of government relocation from the Chinese mainland to Taiwan since 1949, decades-long authoritarian governance prior to the late 1980s, democratization and constitutional reforms during the 1990s, and partisan politics in the context of divided government in the 2000s (Yeh (2010) 913). In the course of tackling these challenges, the Constitutional Court has not only sustained itself but has also become a powerful institution as an indispensable strategic player in the development of constitutional democracy (Ginsburg 157; Yeh (2016) 156).

2.  Excluding its dismissals by the thousands, the Constitutional Court has rendered altogether 752 judgments by the end of September 2017, making on average a dozen decisions per year since its inception. The record of performance has been varied over time: 200 judgments made in the first four decades prior to 1985, in contrast with 552 judgments in the recent three decades. The subjects of review by the Constitutional Court are all-comprehensive, including—but not limited to—judicial precedent, administrative regulations, statutes, and even constitutional amendments (amendment or revision of constitutions). Without any eternity clause (entrenched clauses) or other amendment limits stipulated in the Constitution, the Constitutional Court nevertheless found the constitutional revision of 1999 unconstitutional and rendered it null and void on both procedural and substantive grounds (JY Interpretation No. 499 (Taiwan)). The power of the Constitutional Court may also be glimpsed from its record of unconstitutional findings. For example, from 2003 to 2013, the ratio of unconstitutional findings was a record high, 49.6 per cent, 67 judgments finding impugned rules unconstitutional out of 135 judgments (Yeh (2016) 170). In other words, in almost every two or three judgments, the Constitutional Court found the challenged rules unconstitutional (Yeh and Chang (2011) 808). This high ratio of unconstitutional findings continues to the present day.

3.  This article will introduce the organizational features of Taiwan’s Constitutional Court and illuminate how this court has travelled such a long journey against contextual dynamics ranging from dictatorship, to democratization, and then to a full-fledged democracy. Aside from the introduction and conclusion, the article is divided into two main parts. The first part discusses the organizational features of the Constitutional Court, including the composition, appointment process, powers and jurisdictions. The second part highlights the functional transformations of the Constitutional Court against contextual backdrops since its establishment.

B.  Organizational Features

4.  Articles 77, 78 and 79 of the ROC Constitution establish that ‘the Judicial Yuan’ (司法院) is the highest judicial organ in charge of civil, criminal and administrative cases, and that it shall have a President, a Vice President and a number of ‘Grand Justices’ (大法官) to interpret the Constitution and to unify the interpretations of laws and regulations. At the time of constitutional promulgation in January 1947, it was clear that the Judicial Yuan was to be modelled on the United States Federal Supreme Court as a final court of appeals in possession of all jurisdictions over civil, criminal, and administrative cases as well as constitutional review (Chang (2015) 146). However, due to the strong oppositions by the Supreme Court of civil and criminal jurisdictions and the Administrative Court that had been created prior to the ROC Constitution’s promulgation (Ginsburg 116; Chang (2015) 146), the Judicial Yuan as a final court of appeals has never been crystallized, but become merely a highest judicial administrative organ.

5.  As a consequence, Taiwan has maintained a judicial system with multiple final judicial organs: the Supreme Court and the Supreme Administrative Court as final courts of civil, criminal and administrative cases, alongside a separate judicial administrative organ (the Judicial Yuan) and the Constitutional Court. The President and Vice President of the Judicial Yuan and Grand Justices to the Constitutional Court are appointed by the President of the State with parliamentary confirmation. Since 2003, as a result of constitutional revision, the President and Vice President of the Judicial Yuan have concurrently served as Grand Justices of the Constitutional Court. This reform was intended to integrate the Judicial Yuan and the Constitutional Court, making the Judicial Yuan more of a judicial organ than merely a judicial administration. All other judicial personnel including the judges of the Supreme Court and of the Supreme Administrative Court are appointed by the judicial personnel council chaired by the President of the Judicial Yuan concurrently serving as the Chief Justice of the Constitutional Court.

1.  Organization, Appointment, and Composition

6.  As noted above, what constitutional framers intended for the Judicial Yuan as a final court of appeals was not implemented. Instead, the Organic Act of the Judicial Yuan passed in December 1947 provided for the Council of Grand Justices, a separate judicial organ vested with the exclusive power of constitutional review, to be composed of 17 justices with a renewable term of nine years (terms of office of judges). The first-term Council assumed office in 1948, followed by the second to sixth terms between 1958 and 2003, and justices with staggered appointments from 2003 onwards.

7.  The Court handed down 79 judgments during the first term; 43 during the second; 24 during the third; 53 during the fourth; 167 during the fifth; 200 during the sixth; and 186 from October 2003 to September 2017 (data retrieved from the Court’s website).

8.  The constitutional revisions in the 1990s and 2000s gradually transformed the Council’s organization alongside its powers and jurisdictions. The constitutional revision of 1992 empowered the Council of Grand Justices to dissolve unconstitutional political parties. As a consequence, in 1993, the ‘Act on the Council of Grand Justices’ (司法院大法官會議法‎)—promulgated in 1958—was replaced by the ‘Constitutional Interpretation Procedure Act’ (司法院大法官審理案件法‎). With this new law, the Council was rechristened the Constitutional Court, and its procedures became more adjudicative in nature by adopting oral hearings and cross-examinations. In addition, the constitutional revision of 1997 stipulated that beginning in 2003, the Constitutional Court would be composed of 15 Grand Justices with a non-renewable term of eight years by staggered appointments (terms of office of judges). Among these 15 justices, two would concurrently serve as the President and Vice President of the Judicial Yuan to take up judicial administrative responsibilities, and as a result, not be guaranteed with the eight-year tenure. To implement staggered appointments, it was also provided that eight Grand Justices appointed in 2003 would serve only for four years while the others serve for eight years.

9.  In 2007, while eight justices were nominated, only four obtained parliamentary confirmation. The failed appointments were due to political confrontations between the executive power held by the Democratic Progressive Party (DPP), the long-time opposition prior to 2000, and the parliamentary majority controlled by the Nationalist Party (Kuomintang, KMT), the past ruling party. In 2008, the DPP lost to the KMT in the presidential election, and the KMT President secured the appointments of justices with the consent of the KMT parliamentary majority. In 2010, the President and Vice President of the Judicial Yuan concurrently serving as Grand Justices resigned amidst corruption scandals of the lower courts. Two appointments were made that year. In 2011 and 2015, appointments were respectively made to replace those retired from 2003 and 2007. In 2016, the DPP regained the presidency and obtained the parliamentary majority for the first time. Although their eight-year tenure was not yet expired, the President and Vice President of the Judicial Yuan nevertheless resigned to allow the new DPP president, who made a strong pledge for comprehensive judicial reform during the campaign, to change the judicial leadership. As a result, seven Grand Justices—with two concurrently serving as the heads of judiciary—were nominated by the DPP president and confirmed by the DPP parliamentary majority.

10.  The qualifications of Grand Justices were stipulated in the Organic Act of the Judicial Yuan 1947 and have since remained with minor alterations in 1957, 1980, 1992, and 2015 respectively (selection of judges at constitutional courts / supreme courts). Prior to 2015, five categories of eligibility were set forth, and no single category was supposed to comprise more than one-third of the Constitutional Court. These five categories included a candidate who: 1) served as a judge of the Supreme Court for more than ten years with a distinguished record; 2) served as a member of the legislature for more than nine years with distinguished contributions; 3) was a professor of a major field of law for more than ten years and authored publications in a specialised field; 4) served at the International Court of Justice, or published authoritative works in the field of public or comparative law; or 5) was a person highly reputed in the field of legal research with political experience.

11.  The 2015 revision made a few changes. The first category listed above was changed from ‘a judge of the Supreme Court for more than ten years with a distinguished record’ to ‘a judge for more than fifteen years with a distinguished record’ in order to recruit prominent judges who have served lower courts. The second category of seasoned legislators was removed because very few—if any—were appointed from that category. In addition, two other categories were added: ‘a prosecutor for more than fifteen years with a distinguished record’ or ‘a legal attorney for more than twenty-five years with a highly-reputed achievement’. As a result, there are now seven categories of eligibility, and as in the past, no single category can exceed one-third of the appointments. Rather than adding anything new, these changes were actually made to reflect past practices. For example, prior to the 2015 revision, distinguished prosecutors or private attorneys were appointed by way of other categories such as reputed scholars or researchers.

12.  Five or seven categories of eligibility notwithstanding, the vast majority of those appointed to the Constitutional Court have been either law professors in academia or career judges with experiences in the judiciary or the Ministry of Justice. Prior to presidential nomination, a committee chaired by the Vice President of the State is formed and composed of a few retired Grand Justices. This committee is to solicit or receive recommendations for potential nominees and propose a short list of candidates for consideration by the President. The process is not stipulated in the law but has been developed by past practices. While the President usually chooses nominees from the short list, there have been exceptions.

13.  In the past, more career judges were appointed than law professors. Since the 1990s, however, at least half or more Grand Justices appointed have been law professors (Law and Chang 545). In addition, regardless of scholarly or practising backgrounds, most justices have PhDs or experiences of studying abroad. As of July 2017, among 15 justices of the Constitutional Court, three of them have doctorates from Germany, three doctorates and one master from the United States, one doctorate from Australia, and two doctorates from Taiwan. These impressive educational credentials have helped shape the Constitutional Court’s jurisprudence considerably opening it up to comparative and international law influences (Law and Chang 546; Yeh (2016) 186).

2.  Powers and Jurisdictions

14.  The powers and jurisdictions of Taiwan’s Constitutional Court are very similar to other specialized constitutional courts around the globe. As stated above, Article 79 of the ROC Constitution authorizes the Constitutional Court to provide for constitutional interpretations and unifying interpretations of laws and regulations. The function to unify legal interpretations was pivotal in the beginning of the operation of the Constitutional Court as well as of the entire judiciary, but has become far less so in recent decades. Right now, the judgments regarding unifying legal interpretations constitute about two per cent of the Constitutional Court’s caseload, down from approximately 20 per cent in the 1960s and 1970s, and 50 per cent in the 1950s (Yeh (2016) 170).

15.  According to Article 4 of the Constitutional Interpretation Procedure Act 1993, the Constitutional Court may provide for constitutional interpretations on matters concerning doubts or ambiguities in the application of the Constitution, the constitutionality of statutes or regulations, and the constitutionality of laws and regulations promulgated by local governments. Requests for constitutional interpretations may be brought before the Constitutional Court in the following four categories; abstract review, concrete review, individual complaint (individual complaints procedures), and competence dispute (Kommers 15; Chang, Thio, Tan and Yeh 329; Yeh (2016) 162). Request for abstract review on the constitutionality of laws or regulations can be brought by central or local government agencies or one-third of the total legislators before or after the passage or issuance of laws or regulations. There was no jurisdiction of concrete review initially written in the law, but the Constitutional Court created such a jurisdiction through its own interpretation. In 1995, the Constitutional Court decided in JY Interpretation No. 371 that if a judge in adjudicating a case found that the statute applicable to the case was unconstitutional, he or she could suspend the proceeding and petition to the Constitutional Court for a decision on the constitutionality of the disputed provision. Individual complaints can be brought by natural or legal persons or political parties which have exhausted all available legal remedies and believed that their constitutionally protected rights have been injured due to unconstitutional statutes or regulations applied to their case (remedies at constitutional courts / supreme courts). Last but not least, competence disputes between central and local governments or between different branches of government can also be brought before the Constitutional Court.

16.  Aside from the constitutional revision of 1992 that empowered the Constitutional Court to dissolve unconstitutional political parties (ban on political parties), the constitution revision of 2005 also provided that the Constitutional Court could adjudicate over the impeachment of the President and Vice President if the legislature passes an impeachment resolution. Thus far, the Constitutional Court has not received any cases concerning dissolution of unconstitutional political parties or presidential impeachments.

17.  Unlike courts exercising concrete review or individual complaints elsewhere, Taiwan’s Constitutional Court cannot directly decide on those cases referred by lower courts or brought by individuals. Rather, the Constitutional Court can only declare constitutionality or unconstitutionality of impugned statutes or regulations. Following upon an unconstitutional declaration, individuals may request a retrial or make an extraordinary appeal, and in the case of concrete review, the judges of lower courts must make the decision in accordance with the Constitutional Court’s declaration. This is different from ‘concrete review’ or ‘individual complaints’ exercised by other constitutional courts. For example, the German Constitutional Court, when deciding individual constitutional complaints, may vacate judicial decisions or provide for direct remedies (Kommers 15).

18.  It should also be noted that the Constitutional Court’s exclusive power of review is limited to statutes. Other courts may review constitutionality of administrative regulations or subsidiary rules. The Constitutional Court has made clear in its own decisions that judges may review administrative regulations and refuse to apply them in concrete legal disputes if found inconsistent with the Constitution or statutes. Although judges may review and refuse to apply unconstitutional subsidiary rules in concrete cases, the power to directly invalidate them is still held by the Constitutional Court.

19.  According to the Constitutional Interpretation Procedure Act 1993, requests for interpretations of the Constitutional Court are first sent to a panel of three Grand Justices for an initial review and suggestion for dismissal or admittance. Final decisions of dismissal or admittance require a majority vote of all Grand Justices. At present, a two-thirds quorum is required for the Constitutional Court to decide on constitutionality of statutes while a simple majority is sufficient in deciding the constitutionality of subsidiary rules such as administrative regulations or judicial precedents. Prior to the enactment of the Constitutional Interpretation Procedure Act in 1993, a three-quarters majority was required for deciding on the constitutionality of statutes. As for providing a unifying legal interpretation, a simple majority vote is sufficient.

20.  In the early years of the Constitutional Court, no issuance of concurring or dissenting opinions was allowed. Beginning in 1958, ‘dissenting’ opinions signed by individual Grand Justices were permitted. However, at this time, ‘dissenting’ opinions actually included both those dissenting with the judgment and those dissenting with the reasoning, the latter of which should have been characterized as concurring opinions. Since 1987, the issuance of concurring and dissenting opinions has become institutionalized (Ginsburg 128). In recent years, not only the number of concurring and dissenting opinions increased sharply, but also the length of majority opinions considerably expanded (Chang and Yeh 378).

C.  Functional Evolutions: from the Sidelines to the Centre of Power

21.  The first-term Constitutional Court was created in 1948 on Mainland China and handed down its first two interpretations in January 1949. Yet, as the KMT government was losing the civil war to the Chinese Communist Party that later established the People’s Republic of China, the Constitutional Court—together with other constitutional institutions—was relocated to Taiwan, a former colony of Japan that became a province to the ROC in 1945. Due to wartime conditions, only two Grand Justices appointed in 1948 were able to assume office in Taiwan. Thus, when the first-term Constitutional Court restarted in 1952, it was expanded with seven newly appointed members in Taiwan, one of whom had even served as a judge in Japan.

22.  Tasks facing this Constitutional Court were daunting. Few had expected that the Constitutional Court would survive and navigate through its unexpected journey and meet with the challenges posed by the dynamic contexts of regime allocation, authoritarian governance, democratic transition and consolidation in the decades that followed.

1.  Regime Allocation: Resolving Governing Crisis

23.  The backdrop against which the Constitutional Court was set forth on its mission was full of challenges. Engaged in the warfare across the Taiwan Strait, the KMT government imposed the Martial Law Decree (martial law) that substantially limited individual rights and freedoms, and passed—through constitutional amending process—the ‘Temporary Provisions for the Period of Mobilization to Supress Rebellion’ (the Temporary Provision) that greatly expanded presidential powers and suspended quite a few constitutional provisions. Still, constitutional crises that resulted from the regime allocation demanded judicial assistance.

24.  For instance, in 1954, when the tenure of the first-term legislature expired, it was not possible to hold elections on Mainland China pursuant to the ROC Constitution. The Constitutional Court was called upon to provide a constitutional solution. In JY Interpretation No. 31 (1954) (Taiwan), the Constitutional Court decided that the first-term representatives could continue to exercise powers before the second term would be elected. In JY Interpretation Nos 21 (1953), 29 (1953) and 85 (1960) (Taiwan), the Constitutional Court interpreted constitutional provisions in ways to permit the convening of representative meetings for electing the President or amending the Temporary Provisions notwithstanding the existence of irregularities or even the shortage in the number of delegates because of relocation of the regime. In JY Interpretation No. 117 (1966) (Taiwan), the Constitutional Court endorsed statutory additions of extra representative seats without constitutional revision.

25.  Having provided governing legitimacy for the relocated government, the Constitutional Court also sought to assert—albeit limited—its guardianship of the ROC Constitution. For instance, in JY Interpretation Nos 3 (1952) and 14 (1953) (Taiwan), the Constitutional Court strengthened the powers of the Control Yuan—a functional equivalent to modern ombudsmen—that checked on government integrity. In JY Interpretation Nos 5 and 7 (1952) (Taiwan), the Constitutional Court clarified that personnel of political parties should not be accorded with the status of civil servants, a small—but not insignificant—step to draw a line between the KMT and the ROC government despite the former’s overwhelming political dominance.

2.  Authoritarian Governance: Building up Institutional Capacity

26.  The Constitutional Court was mostly side-lined prior to the lifting of the Martial Law Decree in 1987. In rare cases where the Constitutional Court tried to ensure constitutional governance, its decisions were not implemented. For example, the Constitutional Court in JY Interpretation No. 86 (1960) (Taiwan) found the law that permitted the Ministry of Justice—rather than the Supreme Court or the Judicial Yuan—to directly supervise lower courts contravened the Constitution. Yet, not until 20 years later was that law revised accordingly. Also, in JY Interpretation No. 166 (1980) (Taiwan), the Constitutional Court denounced forced labour and administrative detention exercised by the police as a grave violation of personal freedoms and due process enshrined in Art. 8 of the Constitution. Such violations were not corrected until the Constitutional Court denounced those practices again in a second decision in 1990, ten years later.

27.  Notwithstanding the sidelined position, the Constitutional Court turned to build up its institutional capacity by focusing on its relationship with the Supreme Court and the Administrative Court (Ginsburg 134-142). For example, in JY Interpretation Nos 177 (1982), 185 (1984) and 188 (1984) (Taiwan), the Constitutional Court asserted that its interpretations should bind the entire judiciary, and that based upon a favoured interpretation, individuals could request retrials or make extraordinary appeals. In JY Interpretation No. 154 (1978) (Taiwan), the Constitutional Court affirmed its institutional authority over the Supreme Court and the Administrative Court by reviewing judicial precedents selected by the two courts. In JY Interpretation Nos 89 (1961) and 115 (1966) (Taiwan), the Constitutional Court also intervened into jurisdictional conflicts between the Supreme Court and Administrative Court. Last but not least, the Constitutional Court also tried to expand the powers and jurisdictions of the Administrative Court by providing liberal readings of the definition of administrative action and standing to sue (Chang (2015) 86–87). As these cases have shown, the primary focus of the Constitutional Court during this time was to develop a collaborative relationship with both the Supreme Court of civil and criminal jurisdictions and the Administrative Court so that its own interpretations would at least be implemented effectively within the judiciary (Ginsburg 143). The Constitutional Court was sidelined in the backdrop of authoritarian governance under which political suppression and human rights abuses continued. The number of constitutional interpretations was a record low, and most cases were concerned with unifying legal interpretations. While technical in nature, these interpretations nevertheless prepared the Constitutional Court to thrive in the next stages to come.

3.  Democratization: Steering the Course of Constitutional Reform

28.  The Constitutional Court was pivotal to the success of democratization and constitutional reforms in Taiwan. Most exemplary was JY Interpretation No. 261 (1990) (Taiwan) made in June 1990, in which the first-term representatives who had served for nearly 40 years were ordered to retire by a designated date, setting in motion a second election and constitutional reforms. As previously mentioned, elections for the second-term national representatives could not be held due to the regime’s relocation from Mainland China to Taiwan. An earlier interpretation by the Constitutional Court, JY Interpretation No. 31 (1954) (Taiwan), legitimized the first-term representatives’ continuation in office. Nearly four decades after, the Constitutional Court was requested by the legislature to resolve this constitutional dilemma. In face of public outcries for fundamental political change, the Constitutional Court’s assertion for the second election and corresponding constitutional reforms was all that could be expected (Ginsburg 147; Yeh (2016) 40).

29.  JY Interpretation No. 499 (2000) (Taiwan) made in 2000 was another milestone, in which the Constitutional Court invalidated the constitutional revision of 1999 on both procedural and substantive grounds, as the process of voting was suddenly changed from an open to a secret ballot, and the electoral method and tenure of representatives were arbitrarily altered and extended. The ROC Constitution does not include any eternity clause, unlike the German Basic Law, Art. 79(3) commanding that constitutional amendments do not infringe the division of the federation, participation of states in the legislative process or the principles laid down in the protection of fundamental rights. Nor are there any detailed rules concerning voting methods for constitutional amendment (amendment or revision of constitutions). Yet, the Constitutional Court stressed in JY Interpretation No. 499 (2000) (Taiwan) that due to the nature of the Constitution as ‘the fundamental basis for and supreme law of the country’, its amendment must be made by the authorized body in accordance with constitutional due process, and that ‘any amendment that alters the existing constitutional provisions concerning the fundamental nature of governing norms and order and, hence, the foundation of the Constitution’s very existence destroys the integrity and fabric of the Constitution itself’ (JY Interpretation No. 499 (2000) (Taiwan)). Such judicially imposed limits of constitutional amendment was reflective partly of comparative jurisprudential influences and partly of political flaws in the incremental processes of constitutional reforms since the early 1990s (Yeh (2016) 45, 186).

30.  Many constitutional interpretations were triggered by incremental political reforms and constitutional revisions undertaken during the 1990s. For instance, the question whether the Control Yuan continued to enjoy the power of investigation after the constitutional revision of 1991 suspended its election became a constitutional dispute for resolution in JY Interpretation No. 325 (1993) (Taiwan). Upon the inauguration of the second-term legislature in 1992, a controversy concerning whether the Prime Minister should resign arose, and the Constitutional Court answered affirmatively in JY Interpretation No. 387 (1995) (Taiwan). After the constitutional revision of 1994 adopted a presidential election, whether a directly elected president could appoint the vice president to concurrently serve as the Prime Minister was another constitutional dispute resolved by JY Interpretation No. 419 (1996) (Taiwan). In the course of deliberating these reforms, parliamentary fistfights were not uncommon, a most serious one of which generated JY Interpretation No. 342 (1994) (Taiwan) where the Constitutional Court deferred to parliamentary autonomy to decide on whether bills were passed amidst scuffling.

31.  As constitutional reforms were primarily centred on political reforms, the full guarantees of individual rights and freedoms fell squarely into the docket of the Constitutional Court. Having relied upon a general clause, Art. 22 of the Constitution, as well as comparative and international human rights laws, the Constitutional Court has recognized an array of unenumerated rights including the right of privacy, right to marriage, right to reputation and sexual freedom, (Yeh (2016) 203). Those fundamental rights and freedoms further strengthened by constitutional interpretations have been wide-ranging. The list spans from civil and political rights—such as the right to vote, free assembly, religious freedom, free speech, right to free association and gender equality—to economic, social and cultural rights—including economic freedoms, labour rights, the right to education, right to health, and right to adequate housing, (Yeh and Chang (2011) 832).

4.  Partisan Politics of Divided Government: Mediating Political Conflicts

32.  The new millennium brought an unexpected challenge to the Constitutional Court. In March 2000, the DPP surprisingly won the presidential election due to the split of KMT tickets. Yet, the KMT held a very strong parliamentary majority. This scenario of divided government continued even after the 2004 presidential election in which the DPP President was re-elected by a razor-thin margin partly owing to a gunshot incident that occurred one day before the election (Yeh (2010) 920). Partisan politics between the DPP administration and KMT legislature gave rise to many constitutional controversies and even crises at times. The Constitutional Court, standing now at the apex of its prestige, became an expected arbiter to mediate these political conflicts, not by taking the side of the executive or legislative powers, but by facilitating dialogues between them (Yeh (2016) 175). This pro-dialogue approach has functioned similarly to what has been experienced in some common law jurisdictions where respect for parliamentary sovereignty and the exercise of judicial review powers is expected to leave space for political deliberation and legislative actions by not directly invalidating unconstitutional laws or government actions (Gardbaum; Yap).

33.  The first of such constitutional disputes was about whether the newly elected DPP President and his administration could unilaterally suspend the construction of the fourth nuclear power plant previously approved by the KMT legislature. The Constitutional Court in JY Interpretation No. 520 (2001) (Taiwan) adopted what a scholar calls a pro-dialogue approach (Yeh (2016) 175). Instead of deciding whether the DPP administration or the KMT legislature had the sole power, the Constitutional Court stated that both branches had co-decision making powers and must conduct dialogues to resolve conflicts between them. Such a pro-dialogue approach was also employed in JY Interpretation No. 632 (2007) (Taiwan) where the KMT legislature boycotted the DPP President’s nomination of the Control Yuan members for more than three years, in JY Interpretation No. 550 (2002) (Taiwan) where the KMT mayor of Taipei city failed to cooperate with the DPP central government on the budget for universal coverage of national health plan, and in JY Interpretation No. 553 (2002) (Taiwan) on the date of local election disputed between the DPP central and KMT local governments, among others (Yeh 2010).

34.  Not all partisan confrontations were resolved by judicial facilitation of dialogues. Occasionally, the Constitutional Court took a side between the DPP administration and the KMT legislature (Yeh and Chang (2014) 149). For instance, in JY Interpretation No. 585 (2004) (Taiwan), the Constitutional Court deemed unconstitutional a special commission to investigate the gunshot incident of the 2004 presidential election because the creation and appointment of such a commission fell outside parliamentary powers. Also, in JY Interpretation Nos 613 (2006) and 645 (2008) (Taiwan), the Constitutional Court forbade partisan parliamentary appointments to independent regulatory commissions or administrative review committees, a strategy for the KMT legislature to control the DPP administration.

35.  It was partly due to these decisions and partly due to partisan fights that the appointments of Grand Justices in 2007—as briefly mentioned above—became unprecedentedly politicized, and four nominees were not confirmed. In 2008, the period of divided government was put to an end when the KMT regained control over both executive and legislative powers. The docket of the Constitutional Court—while still filled with a great many individual requests for redress of rights and freedoms—has since witnessed a decline of political disputes (Kuo 605). This nevertheless gave the Constitutional Court a great opportunity to reorient its agenda more extensively on the protection of fundamental rights and freedoms. Nearly all cases since then were concerned with constitutional interpretations or disputes concerning rights including right of privacy, free speech, minority and women’s rights, to name just a few. Also noteworthy is that in many of these rights cases, the Constitutional Court has exhibited greater willingness to make references to international human rights such as those enshrined in the International Covenant on Civil and Political Rights (1966) and the International Covenant on Economic, Social and Cultural Rights (1966), a feature identified elsewhere as part of global or transnational constitutionalism (Yeh and Chang 2014).

D.  Conclusion

36.  Taiwan’s Constitutional Court has navigated a unique journey, during which it has demonstrated its strength and wisdom to tackle challenges against the backdrop of regime allocation, authoritarian governance, democratic transition and consolidation. Composed by legal minds usually trained abroad, this Constitutional Court was able to serve as a strategic player—in times good and bad—to resolve governing crises, build up institutional capacity, steer the course of constitutional reforms, and facilitate dialogues to mediate political conflicts.

37.  The period of divided government was put to an end in 2008 as the KMT controlled both executive and legislative powers. In 2016, the DPP also gained control over both executive and legislative powers. With the end of divided government, the Constitutional Court has seen a decline of political conflicts in its own docket. Meanwhile, the Constitutional Court has gradually reoriented its attention more extensively on constitutional guarantees of fundamental rights and freedoms. In May 2017, it became the first court in Asia to recognize same-sex marriage (same-sex marriage / registered partnership), holding that it was in violation of freedom of marriage and right of equality for the Civil Code not to include same-sex marriages (JY Interpretation No. 748 (2017) (Taiwan)). This reorientation on rights disputes is likely to continue, and serves a solid foundation for the Constitutional Court’s effective functions in the years to come.

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