Why Taiwan’s Constitutional Court Is in Danger

Legislators from the leading party in Taiwan’s Legislative Yuan are moving to pass an amendment that could effectively paralyze the Constitutional Court. Under the proposed changes to the Constitutional Court Procedure Act, the Court may find itself unable to carry out its constitutional mandate. This week, Taiwan’s Legislative Yuan will deliberate the amendments. If the amendments are passed in their current form, Taiwan could face nothing less than a full-blown constitutional crisis.

Unnecessary but harmless?

 Taiwan’s Constitution stipulates that there shall be fifteen Grand Justices. The proposed amendments to Articles 4, 30, 43, and 95 of the Constitutional Court Procedure Act, put forward by legislators from the leading party KMT (or coalition with TPP) in Taiwan’s Legislative Yuan, aim to change the calculation of the number of Grand Justices required to make judgments and rulings from the current total to the statutory total (15). Besides, the threshold for constitutional rulings will be raised to two-thirds of the statutory total (10). Hence, under this amendment, decisions of the Constitutional Court would require the participation of at least 10 Grand Justices.

Proponents of the amendment argue that this change would strengthen the Constitutional Court by ensuring that each ruling involves a greater number of Grand Justices for deliberation and decision-making, rather than allowing rulings to be made arbitrarily by only a small minority of the Grand Justices.

However, in practice, there has been no instance of minority opinions dominating under the current deliberation process, nor is there any evidence suggesting that such risks need to be prevented through legislative amendments. While some argue that other countries also require higher thresholds, it is difficult to claim that any particular numerical design is inherently problematic or unconstitutional. In this sense, the amendment may appear unnecessary but ultimately harmless.

Alas, this is not the full picture.

A looming constitutional nightmare

Taking into account how Taiwan’s constitutional system operates, it becomes evident that the proposed amendment could create a significant crisis.

As of October 31, 2024, seven Grand Justices have retired. According to the Constitution, Grand Justices are nominated by the President and appointed with the consent of the Legislative Yuan. Currently, the President and the leading party (or coalition) in the Legislative Yuan belong to opposing political parties. Amidst intense political confrontation, the President nominated candidates for the vacant seven Grand Justice positions in August, but the Legislative Yuan has been slow to act. Only in December did the legislature begin reviewing the nominees, and a vote is anticipated later this month, that is, after deliberations on the proposed amendments to the Constitutional Court Procedure Act. Furthermore, the majority in the legislature has expressed strong skepticism toward the President’s nominees.

Since November, Taiwan’s Constitutional Court has thus operated with only eight Grand Justices. If the proposed Constitutional Court Procedure Act amendments are passed, the new legal requirements would make it impossible for the Court to meet the threshold for decision-making before the Legislative Yuan consents to the President’s nominations. This would effectively suspend the Constitutional Court’s functions, tying its fate entirely to the Legislative Yuan’s exercise of its confirmation power. Such a scenario would undermine the very responsibility of the Court to protect fundamental rights and safeguard the constitution.

Even without the proposed amendment, the Legislative Yuan’s failure to fulfill its constitutional duty—by delaying the exercise of its power to consent to (or reject) the President’s nominations for Grand Justices—has already caused a constitutional deadlock impeding the proper operation of the constitutional system.

The Court’s current composition of only eight Grand Justices raises questions about the legitimacy of its legitimacy, particularly in cases involving major controversies. Procedurally and substantively, the Grand Justices may adopt a more cautious and reserved approach to avoid potential legitimacy issues. However, when faced with urgent matters affecting the constitutional order, the Constitutional Court has an inescapable responsibility to act. As a result, controversies during this vacancy period are likely to emerge repeatedly.

Are there any possible remedies?

Let us examine the worst-case scenario: what happens if the amendment passes while fewer than ten Grand Justices are in office?

Following the amendment’s third reading in the Legislative Yuan, the Executive Yuan could propose a reconsideration within ten days before the President promulgates it. However, this process would require the same Legislative Yuan to review and vote on the matter again, making the success of such a reconsideration highly unlikely. Ultimately, the controversy would still end up at the doors of the Constitutional Court.

However, under the new law, the Constitutional Court, which currently lacks sufficient members, would lack the quorum to issue rulings. What remedies, if any, exist in such a situation?

Fortunately or unfortunately, Taiwan is not the first jurisdiction to face such a predicament. Poland’s experience in 2016 offers some insights: following a similar legislative amendment, the Polish Constitutional Tribunal invoked the supremacy of the Constitution as a solution. The Tribunal held that it had the authority to disregard legally binding statutes, citing judicial independence as its justification. The subject of judicial review cannot simultaneously serve as the procedural framework governing the review process. Consequently, the Tribunal did not adhere to the amended procedural rules when issuing its judgment, thereby reaffirming the Constitution’s superiority over ordinary legislation. Regrettably, the subsequent rulings’ validity was denied and widely contested. This highlights the complexity of such a deadlock.

It is crucial to avoid a similar scenario in Taiwan, where the parliamentary majority could simultaneously undermine the legitimacy of the Constitutional Court and subsequently use this very undermining as a pretext for further attacks on the judiciary.

If the Grand Justices cannot conduct constitutional review due to procedural amendments, this would create a ‘vacuum’ for constitutional review.

Taiwan’s Constitutional Court has previously exercised its authority to declare even constitutional amendments invalid if they were deemed to violate the Constitution’s fundamental principles in 2000. In other words, the scope of judicial review includes even constitutional amendments, which indicates that such a ‘vacuum’ created by ‘unreviewable laws’ should not exist. Thus, there is reason to assume that the proposed amendments could plausibly be challenged on constitutional grounds, especially given their potential to disrupt the Court’s ability to function, violating the principle of separation of powers.

At a minimum, the application of these amendments should be suspended until mechanisms are in place to prevent the paralysis of the Constitutional Court.

Yes, it is that serious

The gravity of this situation has raised concerns among many professionals and the public—lawyers have taken to the streets to voice their opposition, experts have written op-eds from various perspectives, and some scholars, from a comparative constitutional standpoint, have warned of the potential violation of international norms and a regression in constitutional governance, undermining judicial independence for short-term political advantage.

If this looming constitutional crisis is to have an ideal resolution, it would require the Legislative Yuan to exercise restraint. It should refrain from abusing political power to undermine the very institution tasked with safeguarding the Constitution. At the same time, it should fulfill its constitutional duty regarding the nomination of Grand Justices.

Although it may be an overly idealized appeal, Taiwan’s reputation as a “beacon of human rights in Asia” cannot be maintained without a functioning Constitutional Court.