With the completion of Taiwan’s recent Presidential and Legislative elections, the island nation of 23 million people once again proved to be a beacon of democracy in a sea of heightened geopolitical tension. Lai Ching-te’s ascension to the executive office marks the eighth presidential election in Taiwan’s history and symbolizes the growing resolve amongst Taiwanese to support their liberal society in the face of increasing pressure from the People’s Republic of China (PRC). Taiwan is consistently ranked as the most democratic nation in Asia, in large part due to its transparent election system, track record of peaceful transfers of power, and strong civil rights protections. In addition, with the passing of the 2017 interpretation No.748 by Taiwan’s Constitutional Court (TCC) – the nation’s highest judicial organ – that legalized same-sex marriage, Taiwan is seen as one of the most progressive nations in the world.
In the wake of these elections, it is important to look back at the institutional evolutions that made such a transfer of power possible. The plural democratic institutions and liberal society Taiwan currently enjoys would have seemed like a distant dream only a few decades ago. Before the resumption of popular elections in 1987 and the ending of martial law in 1991, Taiwan was an autocratic state ruled by a military dictator.
In this article, I will present my research on the TCC and its role in facilitating both authoritarian rule and democratic reform in Taiwan, which I conducted for my Comparative Law and Courts course. Particularly, I will discuss the history of the TCC in the context of the recent Taiwanese elections and how they are foundational to the continued prosperity of democracy in the country.
The Facilitating of Authoritarian Rule:
The TCC’s genesis was turbulent, with its first council of Grand Justices being inaugurated in 1948 as the judges of the constitutional court for the Republic of China (ROC). At the time, the ROC was led by the Kuomintang Party (KMT) and engaged in a protracted civil war against the Chinese communist forces. Originally the court was based out of Nanjing, the former capital of the ROC, but after a series of defeats, its government was forced to evacuate mainland China and relocate to Taiwan in 1949. As the ROC reorganized, the TCC became critical in maintaining government continuity at a time when it was vulnerable to institutional collapse during the process of shifting its entire operations across the straits. For instance, the ROC’s National Assembly constantly struggled to meet their necessary quorum as many legislators were still in mainland China or in exile. This issue would threaten the government every time legislative elections approached. Under this pretext, President Chiang Kai-shek ordered the extension of the KMT-led legislature elected in 1948, known as the First Congress, for another three-year term. Following this, in an act of obsequiousness to the President and with the rationale that continuity of government was critical for ROC survival, the TCC issued interpretation No. 31 in 1954 which indefinitely extended the terms of the First Congress.
This ruling would be the TCC’s undoing, as the KMT-dominated legislature would constrain the court in 1958 by requiring a three-fourths majority for all rulings instead of just a simple majority. By facilitating the indefinite continuation of the First Congress, the TCC assisted the KMT in avoiding a legitimacy crisis while weakening its own authority. In this subdued position, the court issued interpretation No. 85 which reduced the membership of the National Assembly from 3,045 to 1,000 resolving the quorum issue but solidifying the KMT rule. This newly configured legislature would go on to abolish term limits for the President while removing the sunset clause to the martial law wartime temporary provisions that governed the ROC since the Civil War. These provisions included the banning of opposition political parties and the denial of civil liberties such as freedom of speech and association. Taiwan would be governed under martial law for the next four decades, a direct result of the constitutional cover the TCC provided to the KMT.
Shepherding Democratic Reform:
The KMT justified their repressive rule as a necessity to maintain order and defend against the ever-looming threat of invasion from the PRC. However, in the 1970s and early 1980s, discontent was rising amongst the Taiwanese populace who were growing restive over the domineering rule of the government. Public pressure would lead to the implementation of pluralistic elections in 1987 and the lifting of martial law in 1991. At this point, the TCC would again emerge as an important constitutional player in shepherding Taiwan through yet another transitionary period. In 1990, the TCC issued interpretation No. 261 which requested new elections and the forced retirement of legislators from the First Congress thus nullifying interpretation No. 31 and removing the vestiges of one-party KMT rule. The National Assembly was exclusively responsible for constitutional amendments and by removing the First Congress legislators, the TCC paved the way forward for opposition political parties to push for democratic institutional reform.
The post-1987 TCC was much more active in large part due to the decrease of the supermajority of three-fourths required to render interpretations to just two-thirds in 1993 by the newly configured legislature. As of 2022, the total number of TCC interpretations was 813, of which 597 were made during the 1987-2022 period. Furthermore, after living under martial law for four decades, many Taiwanese began looking to the TCC – as the highest constitutional authority – to amend the repressive laws from KMT rule and protect their civil liberties. As a result, the TCC shifted from focusing on solving institutional issues regarding government organization, such as during the National Assembly quorum crisis, to a broader campaign of upholding civil rights and political freedoms.
In this position, the TCC was empowered to address the anti-constitutional laws enacted under the temporary provisions. For instance, they ruled that the ban on communist rallies violated freedom of speech, and struck down the anti-hooligan laws that limited the legal protections for those the police deemed as threats to society. In this setting, the court has increasingly rendered interpretations on politically divisive civil rights issues, culminating in their most revolutionary ruling, interpretation No. 748 which legalized same-sex marriage. Additionally, through interpretation No. 499, the TCC developed constitutional safeguards to prevent the violation of individual rights by stating that “[s]ome constitutional provisions are integral to the essential nature of the Constitution” so cannot be altered.
Social issues such as same-sex marriage would have remained outside the TCC’s prerogative during KMT rule. However, the post-1987 multi-party legislature empowered the court to make interpretations promoting individual rights at the expense of state power that they may have avoided before out of fear of retaliation from KMT authorities. With the threat of government sanction lowered substantially, a larger portion of TCC rulings from then on were aimed at protecting civil rights against state transgressions. Between the years 1987-1999, under forty percent of the TCC’s interpretations addressed civil or political rights. These types of interpretations dramatically increased to over two-thirds of total rulings between 2000-2017.
An Activist Court:
The creation of a multiparty political system made government institutions increasingly susceptible to partisanship as the legislature and executive saw bodies like the TCC as an avenue to outflank their rivals. For instance, the Democratic Progressive Party (DPP) majority legislature and executive offloaded the divisive issue of legalizing same-sex marriage to the court. DPP candidate Tsai Ing-wen won the 2016 Taiwan presidential election with a pledge to support marriage equality for same-sex couples. This goal was out of reach for her as the public, the legislature, and her party were all divided on this issue. Although the majority of Taiwanese supported the legalization of some form of same-sex unions the support for same-sex marriages specifically was not as strong, with only 35.3% favoring it.
Serendipitously for Tsai, in addition to the five vacancies in the TCC following the constitutionally mandated eight-year terms justices serve, two more justices unexpectedly retired due to public pressure. This resulted in a total of seven open seats that Tsai could now fill with those who were more aligned with the policies and interests of the DPP. Of the justices she selected, six of them supported same-sex marriage, and shortly after they entered office interpretation No. 748 was issued. By facilitating one of the major political objectives of Tsai’s campaign, the TCC greatly enhanced the stature of the DPP as a liberal party around the world while drawing criticisms of being a politized court by political opponents.
Moreover, the TCC’s increasing use of international laws displays the strengthening of the court’s judicial review authority and increasing activism. Between 1987 and 1999, three decisions by the TCC utilized international laws to supplement their constitutional interpretations increasing to nine such decisions between 2000-2022. In interpretation No. 748, the US Supreme Court Obergefell v. Hodges ruling was used as a framework for TCC’s decision. The US Supreme Court ruled that provisions that deprived same-sex partners of their freedom to marry and equal protection under the law were unconstitutional. This runs parallel with interpretation No. 748, with the two issues of freedom to choose who to have a relationship with and the right to be treated equally with heterosexual couples being central to the ruling.
Charges that the court is becoming increasingly activist have emerged after the submission of this interpretation. Such arguments were given more weight with the passing of the Constitutional Court Procedure Act which took effect in 2022. This legislation decreased the two-thirds majority required to pass interpretations to a simple majority for the court. Lowering the threshold for decisions to be passed has led to a greater number of interpretations rendered by the court. This may lead to the politicization of the judiciary which is made all the more concerning when considering that term limits for Justices are staggered to coincide with every other presidential cycle making political appointments more likely.
Future of the Court:
Today, the court is still perceived with some level of distrust by Taiwanese who remember its kowtowing to the KMT-led government. According to a World Values Survey in 2019, around 55% of Taiwanese trust the judiciary which is a relatively low percentage for a developed country. Consequently, reforms have been enacted in the past few years which have attempted to make the courts more transparent and increase public involvement in its functions. For instance, the Citizen Judges Act was passed in 2020, which directs that for criminal cases punishable by 10 years or more, a joint court of 6 randomly selected citizens along with 3 professional judges will make the ruling on those.
Moreover, it remains to be seen whether the increasing activism of the TCC will lead to a politicized judiciary. The TCC’s efforts to amend the repressive laws of the authoritarian era have been largely supported by the populace thus far. In fact, their utilization of judicial review was critical in making the necessary amendments to allow for internal reforms, most notably clearing the legislature of First Congress holdovers. For this reason, the perception of judicial review does carry a relatively positive connotation amongst Taiwanese. However, with its wider jurisdiction post-1987, the TCC is now seen as an important tool for pushing the political agendas of the competing parties and breaking legislative deadlocks. By creating the framework and precedent for greater judicial review, those who intend to use the power of the court to support what they believe are just causes may have also established the mechanisms by which political opponents could restrain them in the future.
