The Taiwan Constitutional Court (TCC) has been widely regarded as a progressive court in Asia. It also has often been criticized as inefficient, rendering on average fewer than fifteen decisions a year. This inefficiency can be attributed to the institutional design of the court’s judicial review procedures, a central aim of which was to fetter rather than facilitate the TCC.
In 1958, Taiwan’s legislature required that any constitutional decision required the support of three-fourths of the attending justices. (The court then had 17 justices and a three-fourths quorum requirement.) This was an act of political revenge, as the legislature was angry about a recent TCC decision. Even after 1993, when the voting threshold was lowered to two-thirds, the supermajority requirement applied to each and every sentence of the holding of a constitutional decision. Undoubtedly, this requirement prevented the TCC from issuing its decisions efficiently.
To address this problem, among other things, the legislature has again revised the TCC’s procedures by promulgating the Constitutional Court Procedure Act (CCPA). This watershed piece of legislation took effect on January 4, 2022. The CCPA not only lowered the threshold from two-thirds to a simple majority, but also introduced the institutions of constitutional complaint and of retroactive remedy. As Ming-Sung Kuo and Hui-Wen Chen have pointed out, the new CCPA may make the TCC more transparent, participatory, and efficient.
[T]he simple majority threshold can easily make the court more ideological, if not partisan.
Notwithstanding these benefits, the CCPA may spawn some unexpected side effects. To begin with, the simple majority threshold can easily make the court more ideological, if not partisan. Before 2022, the supermajority threshold ensured that the TCC would be bipartisan by forcing justices with opposite viewpoints to negotiate and compromise with each other if they wanted to hammer out any constitutional solutions. Consequently, all of the TCC’s controversial decisions garnered the support of justices appointed by both major political parties, a fact that undergirded the legitimacy of every politically salient TCC ruling, including the 2007 presidential immunity and secret privilege case, the 2017 same-sex marriage decision, and the 2020 ill-gotten assets of political parties decision. No one could reasonably accuse the TCC of rubber-stamping a ruling party’s political agenda.
In contrast with the supermajority threshold, the simple majority threshold makes the TCC vulnerable to such charges. Because the justices serve staggered and non-renewable terms of eight years, every newly elected president during his or her four-year term will have the chance to appoint half of the TCC justices, subject to congressional approval. In other words, given the fierce political competition and frequent party turnover in Taiwan, the TCC may have a new majority after every presidential election. Therefore, constitutional decisions are more likely to be overruled if they are passed with a bare majority, because the justices in the minority know that after the next presidential election, they very well may have the opportunity to circumscribe or alter past decisions.
The CCPA also borrows from the German system to install a institution of constitutional complaint, which allows the TCC to adjudicate directly on the constitutionality of the rulings of other apex courts, including the Supreme Court, Supreme Administrative Court, and Disciplinary Court. Prior to the CCPA, the TCC had only the power of abstract review and could not protect individual rights in a timely manner. The introduction of constitutional complaint may, nevertheless, inundate the TCC with petitions and thus eventually paralyze it. In the first two months following the enactment of the CCPA, the TCC has received twice as many petitions as it normally would in such period. Furthermore, constitutional complaint may create or exacerbate struggles between the TCC and other top courts because the TCC, which has the exclusive power to invalidate a law, has essentially become the court of fourth instance on top of the Supreme Court. In fact, dueling courts are not unprecedented in Taiwan. In a 2004 decision, the TCC struck down two Supreme Court precedents, prompting the latter court to express its strenuous disagreement with the former. The Supreme Court at a press conference accused the TCC of distorting the two voided precedents, hampering criminal-law practice, and exceeding its jurisdiction.
[N]either transparency nor efficiency is without cost. How we strike the balance between the costs and benefits of the CCPA may significantly affect constitutional development in Taiwan.
The selective retrospectivity of TCC decisions has been an especially prominent lightning rod for controversy. Before 2022, neither the Constitution nor any act referred to law-invalidating TCC rulings as ex nunc or ex tunc. The TCC solved this problem in August 1984 by declaring that each interpretation of the Court “shall become effective as of the date of delivery of the interpretation, unless otherwise expressly stated therein.” In another decision, the TCC opined: “An Interpretation given by this Court in response to a petition brought by individual persons shall also govern the original case for which the individual persons are making the petition.” Thus, though generally prospective, the TCC’s decisions in petitioners’ cases and other cases pending in the TCC are retrospective. This selective retrospectivity of TCC decisions has raised concerns about equal protection because people similarly situated may not be equally treated. To address the problem, the CCPA provides that the TCC’s interpretations regarding criminal law should be applied retrospectively in all similar cases that have become final. Although its aim is to pursue substantive justice, this provision may overburden the judiciary as well as the Attorney General’s office, which is responsible for filing extraordinary appeals in respect of criminal decisions that became final prior to a TCC interpretation. Worse still, concerns about this outcome of the provision may reduce the TCC’s willingness to strike down a law in the first place, as such a dramatic decision might unduly undermine legal certainty.
The TCC has not been exempt from the twin global trends of judicialization of politics and ever-increasing burdens on constitutional courts. While sounding a cautionary note, this essay is in no way meant to discourage efforts to enhance the transparency and efficiency of the TCC. By the same token, however, we should bear in mind that both transparency and efficiency are means to rights protection, not ends of judicial reform. More importantly, we should acknowledge that neither transparency nor efficiency is without cost. How we strike the balance between the costs and benefits of the CCPA may significantly affect constitutional development in Taiwan.
* * *
Chien-Chih Lin is an associate research professor at the Institutum Iurisprudentiae of Taiwan’s Academia Sinica and book review editor of International Journal of Constitutional Law. Upon the invitation of the Judicial Yuan, he participated in a committee convened by TCC Justices to discuss how to implement the CCPA. The opinions expressed here are his own.
Suggested Citation:
Chien-Chih Lin, “The Pros and Cons of Taiwan's Constitutional Court Procedure Act,” USALI Perspectives, 2, No. 17, April 7, 2022, https://usali.org/usali-perspectives-blog/the-pros-and-cons-of-taiwans-constitutional-court-procedure-act.
The views expressed in USALI Perspectives are those of the authors, and do not represent those of USALI or NYU.
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.