USALI’s guest speakers from East Asia often inspire reflection on our own legal and judicial debates from new angles. At a special seminar at USALI on November 1, Chief Justice Tzong-Li Hsu and Justice Jau-Yuan Hwang of Taiwan’s Constitutional Court made a case for judicial activism, which has become a mostly pejorative term in the United States. Chief Justice Hsu argued that Taiwan’s Constitutional Court should “serve as mediator for opposing political forces in the process of transition.”
While the U.S. Supreme Court has developed the self-limiting “political question” doctrine, Chief Justice Hsu said that Germany – which has historically provided one model for Taiwan’s legal and judicial system – rejects this approach that carves out a zone of questions for the elected branches to answer. As a German-trained constitutional scholar, Chief Justice Hsu embraced the German view. As a Constitutional Court justice, however, he said he has come to see the wisdom of sometimes remaining passive with respect to constitutional questions that also implicate highly sensitive political questions, such as the territorial bounds of the Republic of China, the official name used by Taiwan’s government. Still, he concluded, “if the question is really relevant to freedom, democracy and constitutional order in Taiwan, we should take it.”
The Taiwan Constitutional Court’s approach has been carefully timed activism, he said. That is, the court may time its decisions so as to minimize unintended political fallout. After issuing its domestically controversial 2017 decision ordering the legislature to legalize same-sex marriage, the court decided to let some time pass before deciding on another highly contested question involving the state and sex: a petition to invalidate the law that criminalizes adultery. “We would say that Taiwanese society needs a break, so we keep the case pending,” said Chief Justice Hsu. It may be that activism works better when justices making sensitive decisions have term limits, which is the case in both Taiwan and Germany.
Group photo of delegation with USALI staff.