The Judicialization of Politics in Taiwan, Chien-Chih Lin

Taiwan is perhaps one of the leading examples of the judicialization of politics in Asia in the context of democratization. As Chien-Chih Lin demonstrates in this article, the democratization of Taiwan since the r980s has greatly empowered the Constitutional Court in relation to other political institutions, especially the legislative and executive branches of the state.

Specifically, this paper analyzes the judicialization of politics in Taiwan - a process which has never been elaborated comprehensively, focusing mainly but not exclusively on Taiwan's Constitutional Court (hereinafter “the Court”). Structurally, Taiwan transformed itself from an autocracy into a democracy in the late r980s. Before democratization, political power in Taiwan was highly monopolized, and judges were generally deferential to dictators. Even after democratization, judicial independence has not been completely entrenched, and the Court is still subject to political attack from time to time. Nonetheless, due to the need to legitimate its reign in Taiwan, the Kuomintang (KMT) regime relied on the Court even during the authori­tarian periods, let alone after political liberation. Politically, ideological con­flicts have become increasingly intense, especially during the period from 2000 to 2008 when the executive and the legislative powers were held by different parties. Because of the political dynamic, the Court was asked to solve issues regarding constitutional politics frequently. Furthermore, the change of personnel and procedural rules also rendered the justices more willing to step in the political thicket.

During the authoritarian period, the Court was quite obedient to the executive. Despite its impotence, however, the Court did render three car­dinal decisions that demarcated the boundaries between the executive, the legislature, and the judiciary. The first one was Interpretation No. 31, in which the issue was whether the national representatives elected in mainland China should remain in office after the expiration of their terms when re­elections were thwarted by national calamity, namely the Chinese Civil War. The KMT could have just unilaterally prolonged the terms of these represen­tatives, but it chose to resort to the Court. In its opinion, the Court trans­formed such political expediency into a constitutional necessity, emphasizing the necessity of the prolongation. The second decision was Interpretation No. 76, in which the Court was asked which department counted as the congress in Taiwan. Up to that point, legislative powers in Taiwan had been divided into three parts and exercised, respectively, by the Legislative Yuan, the Control Yuan, and the National Assembly. The Court found that all three institutions en masse constituted the congress. The third was Interpretation No. 86. During the party-state period, all high courts and district courts were subordinate to the Executive Yuan, instead of the Judicial Yuan. Located at the apex of the judiciary, the Court ruled in Interpretation No. 86 that all courts, without exception, should be subordinate to the judiciary. This is the most important decision with respect to judicial independence. In ruling against the executive, the judiciary tried to take back control of the lower courts. Nevertheless, this interpretation was not implemented for decades, and judicial intervention in politics did not effectively constrain the executive at that time.

Since democratization, the expansion of judicial power has gradually shifted the balance between the judiciary and its co-ordinate branches, in that both the legislature and the executive have been more obedient to the judiciary. In terms of executive deference to the judiciary, this change can be observed in three respects: judicial control over political conflicts, heightened scrutiny of executive discretion, and judicial intervention in policy-making and mega politics. Specifically, with the expansion of judicial power, politicians now rush to the Court for judicial decisions whenever there is a political conflict, despite the existence of other constitutional solutions. Even though they may not be completely satisfied with the outcomes, few challenge the authority of judicial decisions. The paradigmatic example is Interpretation No. 520, in which the Court was engulfed in an energy policy issue, namely whether the executive could refuse to implement the budget of the Fourth Nuclear Power Plant without notifying the congress beforehand. This was politically controversial, since the Fourth Nuclear Power Plant was one of the most high-profile disputes in the presidential campaign of 2000. Instead of issuing a clear-cut opinion, the Court asked both parties to negotiate further and, if that failed, to look for other resolutions. Both parties were dissatisfied with the decision, but it successfully unravelled the political gridlock. In addition, in both Interpretation Nos. 613 and 645, one common issue was whether positions of independent Commissions could be awarded in proportion to the percentages of seats in the congress. This was controversial, since the KMT wanted to maintain its control over personnel of the executive even after it lost the presidency. In Interpretation No. 627, in which the president and his wife were accused of venality, embezzlement, and other misconduct, the president refused to testify and invoked the presidential criminal immunity and state secret privileges.

For the purpose of this article, the holdings in these cases are not that important. What is more noteworthy is that these cases show that political conflicts are now often solved not in the congressional hall, but in the courtroom. This was especially true from 2000 to 2008, since the executive and the legislature were controlled by different parties. Due to mutual distrust, almost every political fight between the ruling party and the opposition party was eventually addressed by the Court. By solving these political conflicts, the Court became the de facto policy-maker. What is more, politicians now take potential judicial reactions into account during the formation of national policies, since they know opponents may try to use the judiciary to undo these policies.

This shift in political equilibrium is also reflected in heightened judicial control over executive discretion. Politically, the executive could do no wrong during the authoritarian period. Economically, Taiwan was a developing state that “favor[ed] technocrats for public governance and [found] the legal regime and its main players - lawyers - hostile or at least unfriendly.” Because of this, the executive enjoyed vast discretionary power beyond the reach of judicial scrutiny, and its regulations were binding upon judges. After 1987, Taiwan transformed itself not only from an autocracy to a democracy, but also from a developmental state to a regulatory state.

Finally, the Court has gone one step further and started to make policy through abstract judicial review. In Interpretation No. 400, an eminent domain case, the appellants asked for just compensation. Instead of delivering a minimalist opinion that focused only on the concrete facts of the case, the Court made a general policy decision which suggested that the government should compensate owners of expropriated land in all similar situations. This decision imposes an untenable financial burden on the government, and has not been fully implemented to date. Interpretation No. 603 is another example in which the Court had the final say over national policy. In this case, the DPP government had tried to collect the fingerprints of every citizen, claiming that the policy was consistent with several public interests and endorsed by most people. The Court first suspended the implementation of the policy by issuing a preliminary injunction; three months later, it pro­hibited the government from implementing this policy. The executive sub­mitted to this decision, and the fingerprint collection project was aborted. Although the Court based its decision on privacy concern, it does not change the fact that it was the Court, rather than the executive, that determined the fate of this policy.

Moreover, the reach of judicial policy-making encompasses the mega politics - “questions concerning the very definition of the polity” - that relates to the nationhood and national identity of Taiwan.

After democratization, the Court issued several decisions that aimed to dismantle this ideology. In Interpretation No. 261, the Court required that “national” elections should be held in Taiwan, thus implicitly recognizing that mainland China was no longer part of the Republic of China. In Interpretation No. 467, the Court ruled that the aforementioned Taiwan provincial government “shall not be recognised as a legal public legal person of local self-government.” In Interpretation No. 479, the Court struck down related regulations that prohibited the China Society of Comparative Law from registering its name as “Taiwan Law Society.” In Interpretation No. 618, the law at issue prohibited Chinese people who have moved to and registered their household in Taiwan for less than ten years from serving as government employees. The issue is essentially a question of national identity: who counts as Taiwanese? Even though this statute is in effect discrimination based on national origin, the Court upheld the law, arguing that “it is not unreasonable to give discriminatory treatment to such a person [with Chinese national origin]... with respect to the qualifications to serve as a governmental employee.” In making this ruling, the Court took the position that some of the most suspicious discriminations can be justified because Chinese people per se are not regarded as Taiwanese people. Other decisions dealing with the relationship between Taiwan and China include Interpretation Nos. 497, 558, 710, and 712. None of these decisions clearly articulates the relationship between China and Taiwan, but all implicitly recognize that these two jurisdictions are separate and are controlled by different sovereign governments.

Finally, with respect to the issue of restorative justice, the legislature enacted the Act Governing the Recovery of Damage of Individual Rights during the Period of Martial Law to deal with the so-called torturer problem. Despite the act's lofty name, progress in implementing restorative justice in Taiwan has been quite slow. The KMT government had been reluctant to face this issue, since it was the ruling party that committed these crimes; the DPP government had been unable to tackle this issue because it was paralyzed by political stalemate. Perhaps due to the political atmosphere, the ruling of the Court in this matter was conservative as well. In general, the Court struck a balance between seeking restorative justice and tolerating the crimes com­mitted during what it deemed the “exceptional circumstances.” In Interpretation No. 272, for example, the Court, in order to maintain social stability, ruled that “those who are not in active military service may not appeal the final court decisions with respect to criminal cases adjudicated in the military tribunals during the period of the Martial Law.”

Not only the executive, but also the legislature has become more submissive to the judiciary. Regarding the change of the legislature-judiciary relation­ship, the heightened scrutiny in judicial review is the first step to contain legislative power. Second, the Court also gradually expanded the scope of judicial review by examining issues that formerly pertained to legislative self­governance. Finally, the Court began to replace laws that it ruled unconsti­tutional with its own ruling without waiting for further statutory amendments.

To begin with, the increase in the percentage of constitutional decisions against the government clearly shows that judicial control over the legislature has strengthened. Given this fact, whether a law can survive the gauntlet of judicial review has become one important concern that legislators take into account. This is particularly evident after the revision of the Constitutional Interpretation Procedure Act, which allows congressional minority to chal­lenge the constitutionality of laws passed by the majority. The significance of this sort of challenge may be best seen in the case of the Shooting Act cases, in which the Court decisively ruled against the KMT. When President Chen was running for re-election in 2004, he and Vice President Annette Lu were shot the day before the election. Since Chen and Lu won by a razor-thin margin of 0.2%, the KMT congress enacted the ShootingActto investigate the shooting. Outvoted by the KMT, the DPP legislators petitioned the Court, trying to “veto” the act; the Court struck down the act twice on constitutional grounds in Interpretation Nos. 585 and 633. It is worth noting that the infuriated KMT congress curtailed the judicial budget unconstitutionally between the promul­gation of the two decisions as revenge. Still, the Court declared the revised Shooting Act unconstitutional and void.

Moreover, the judiciary has gone one step further, examining whether legislators have followed specific rules when legislating - an area putatively within the self-governance domain of the legislature. At the beginning, the Court was deferential to the congress in this regard. In Interpretation No. 342, for example, the Court cited a US Supreme Court decision, arguing that whether the congress was in compliance with its procedural rule falls into the realm of parliamentary autonomy that lies beyond judicial scrutiny. In Interpretation No. 381, the Court once again emphasized that the National Assembly had ultimate discretion in determining what procedures were needed to effect a resolution of a constitutional amendment. These two decisions held that procedural requirements fall into the domain of congres­sional self-governance and do not generate constitutional concerns. Notwithstanding the two precedents, the Court was considerably bolder in Interpretation No. 499, wherein it argued that “not all parliamentary proceed­ings that are clearly and grossly flawed may take the pretext of being internal, self-regulatory matters and evade their legal consequences.” The Court thus declared the 1999 ConstitutionalAmendment unconstitutional partly because of procedural deficiencies.

Finally, legislative deference to the judiciary is most evident when the Court expressly usurps the power to legislate after striking laws down. In the past, the Court would simply ask the legislators or related governmental agencies to promptly revise the annulled laws in accordance with its consti­tutional decisions. This state of affairs has changed recently - the Court now tends in its decisions to prescribe solutions to replace the laws it has nullified. To name a few, in Interpretation No. 624, the Court designated an alternative mechanism for petitioners to file suits against the government even before allowing time for any statutory revision. In Interpretation No. 627, the Court unilaterally expanded the scope of the Criminal Procedure Code, and desig­nated a five-judge special tribunal. In Interpretation No. 677, the Court decisively prescribed when prisoners should be released without any legislative response. In each of these instances, the legislature simply accepted the ruling without any dissent, and no one seriously questioned the legitimacy of judicial law-making.

Another category of judicial (con)law-making is the creation of new rights through constitutional decisions. Formally, the participation of the congress as well as the public was required to amend the ROC Constitution. Nevertheless, the Court has created many new rights by interpreting broadly Article 22 of the Constitution, which is similar to Article 9 of the US Constitution. To name a few, the Court has recognized the right to marry, the right to choose one's own name, freedom of sexual behaviour, freedom of contract, information privacy, and the right to reputation. Likewise, no one has seriously challenged the Court's right to grant such rights.

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