Since late 2024, the Taiwan Constitutional Court (TCC) has been unable to issue merits-based decisions. The Court is neither resolving separation-of-powers disputes between the executive and legislature nor providing fundamental rights protection for individuals. This institutional deadlock constitutes a constitutional “grey hole”, where only the form of the legal order exists, without any substantive protections. All proposed solutions carry limitations, and some may even exacerbate rather than alleviate the problem due to the illusion of legitimacy they create.

Background

To understand the nature of this constitutional “grey hole”, it is essential to explore its origins. It traces back to Taiwan’s 2024 national elections, which created a divided government. While the Democratic Progressive Party (DPP) secured a third consecutive presidency, it lost Legislative Yuan majority to a Kuomintang (KMT) and Taiwan People’s Party (TPP) coalition. This divided government generated institutional conflicts and thrust the Taiwan Constitutional Court (TCC) into the center of political conflicts, ultimately challenging its capacity to operate effectively.

On December 20, 2024, notwithstanding substantial public opposition, the KMT-TPP coalition passed a controversial amendment to the Constitutional Court Procedure Act (CCPA). The amendment imposed three interrelated constraints: a ten-justice quorum for constitutional adjudication irrespective of the number of judges actually sitting at the Court; a supermajority requirement of nine votes to invalidate legislation; and immediate implementation upon promulgation, bypassing the customary three-day grace period.

A Constitutional Court of dismissals

These newly enacted procedural constraints, combined with the expiration of seven justices’ terms at the end of October 2024, made filling the Court’s vacancies critical. However, the Legislative Yuan successively rejected all seven of President Lai Ching-te’s nominees in December 2024 and again in July 2025, leaving the Court with only eight justices. Unable to meet the new ten-justice quorum, the TCC became functionally paralyzed, unable to hold oral arguments, issue injunctions, or render decisions. To date, it has issued no merits-based ruling for over a year.

Worse still, the pattern of rejected nominations will likely continue, considering the still-escalating confrontation between the executive and legislative branches.

Superficially, the Constitutional Court continues to operate. The amended CCPA provides that when the Court cannot meet the quorum, it may dismiss cases by majority vote of sitting justices. Yet this procedural provision merely formalizes dysfunction: the Court has become, in effect, a Court of dismissals rather than a court of constitutional adjudication, unable to discharge its fundamental responsibilities.

Defining the grey hole of law

This situation – legal form without substantive protections – constitutes what David Dyzenhaus terms a “grey hole of law.” In his seminal work “The Constitution of Law: Legality in a Time of Emergency”, Dyzenhaus distinguishes two modes through which states create exceptional conditions: black holes and grey holes. The former describes situations where law ceases to exist entirely; the latter denotes contexts where the façade or form of the rule of law persists without any substantive protections (p. 3). To clarify this distinction, Dyzenhaus contrasts total cessation with half-hearted cooperation. Total cessation involves the explicit suspension of law or exclusion of judicial review, producing lawless spaces. Half-hearted cooperation, conversely, maintains deceptive legal forms – weak tribunals that serve merely as rubber stamps – creating an illusion of legal oversight without genuine constraint (p. 3).

What distinguishes Taiwan’s grey hole is that it weaponizes procedure against substance: the very rules designed to protect constitutional integrity now prevent its restoration. Unlike Dyzenhaus’s grey-hole cases, where the legal order becomes a rubber stamp for other branches and ceases to exercise genuine decision-making, here the constitutional order cannibalizes itself through its own procedural requirements.

This self-defeating architecture has already produced adverse consequences for rights protection. Consider, for instance, how a High Court judge challenged the constitutionality of flag insult provisions as violations of free expression in 2017. The case resumed this year, culminating in a guilty verdict rendered in late October. Proceedings continued without awaiting constitutional judgment, illustrating how citizens’ legal avenues to protect their fundamental rights have become merely formal rather than substantive.

Taiwan’s grey hole also illustrates why grey holes may be more harmful than black holes: The lawlessness characteristic of a black hole leaves the governments no choice but to recognize that they are acting outside the legal order. Instead, a grey hole creates the illusion of legality: governments operating within such a space can falsely claim that they are acting in accordance with the legal order.

In Taiwan’s case, this illusion of legitimacy exacerbates separation-of-powers conflicts within an already divided government.

On one hand, the KMT-TPP coalition in the Legislative Yuan accuses the Executive Yuan of refusing to implement enacted legislation. Conversely, the Executive Yuan contends that some Legislative Yuan bills are unconstitutional and intends to file petitions. While government branches retain the formal ability to initiate constitutional challenges based on the separation of powers, all parties recognize that the Constitutional Court currently lacks the capacity to render decisions.

Worse still, this illusion of legitimacy can turn some proposed solutions into potential extensions of the problem.

Judicial responses

If the pattern of rejected nominations continues, one potential resolution would be judicial self-protection: the Court striking down the CCPA itself. This approach might align with Dyzenhaus’s prescription that judges should try their hardest “to turn grey holes into situations which are properly governed by the rule of law” (p. 3). However, Taiwan’s case presents unique complexities: should the Court – operating with only eight justices – challenge the legislatively imposed ten-justice quorum requirement?

Some argue that the Court may invalidate statutory amendments when necessary to safeguard its proper functioning and to discharge its constitutionally mandated powers. Indeed, some Constitutional Court justices have opined that the Constitutional Court is not bound by procedural legislation that blocks its constitutional functions and may supplement inadequate provisions to preserve constitutional supremacy.

However, a statement from three other Constitutional Court justices demonstrates that this position remains highly contested. While they also acknowledge constitutional supremacy, they contend that respecting, rather than invalidating, the CCPA constitutes proper constitutional guardianship. They maintain that justices must observe the legally enacted CCPA and should not unconstitutionally expand their powers. In practice, this disagreement means the Court cannot even reach the pre-amendment threshold of six votes needed to initiate deliberations on the CCPA’s constitutionality (under the previous CCPA, two-thirds of sitting justices were required to convene, resulting in the six-justice threshold from eight justices).

The Court’s internal divisions also reveal the paradox inherent in resolving grey holes: while judicial intervention appears necessary to remedy the legislative-created grey hole, such action would simultaneously reinforce this grey hole by disregarding democratic will, potentially intensifying future political conflicts.

Another judicial pathway involves decentralized constitutional review conducted by ordinary courts, with some proposing legislative reforms to authorize all courts to disregard unconstitutional laws. While this could mitigate the grey hole’s harm by empowering courts to protect fundamental rights, it requires legislative reform that conflicts with the current legal order, as the flag insult case demonstrates. Moreover, this approach would only partially address the grey hole, as it only protects fundamental rights in individual cases but leaves inter-branch disputes over governmental powers – that do not directly implicate citizens’ fundamental rights – unresolved. Ultimately, these disputes still require the Constitutional Court’s involvement, as the Court remains an integral component of the current constitutional order.

Executive pathway

Another potential solution could come from the executive branch.

After the Legislative Yuan passed the CCPA, some argued that the President, as directly elected by the people with constitutional guardianship responsibilities, could refuse to promulgate the CCPA based on the duty to defend the Constitution. Under Article 72 of Taiwan’s Constitution, the President shall promulgate statutory bills within ten days of receiving them from the Legislative Yuan. Moreover, after several justices recently opposed judicial intervention, some (see here and here) advocate that the President refuse to promulgate unconstitutional laws while the President of the Executive Yuan withhold the constitutionally required countersignature (Article 37), effectively blocking such legislation from taking effect.

Yet these solutions risk expanding rather than resolving the grey hole. As Dyzenhaus argues, even in states of exception within the legal order, the executive must avoid resorting to extra-legal powers and resist the temptation to expand the legal grey holes (p. 4). In Taiwan’s case, while debate persists over whether promulgation and countersignature constitute mandatory executive duties, it seems incompatible with the regular legal order for the executive to declare laws unconstitutional without judicial review. Even in the present grey hole, allowing executive refusal amid the Court’s dysfunction risks expanding the perilous grey hole that grants the executive discretionary power over legislative compliance. Consequently, if each branch bears responsibility for narrowing grey holes, executive intervention seems particularly hazardous.

The democratic solution

Finally, the next election offers a potential path to resolve the grey hole. Any electoral outcome reflecting current public sentiment could shift the balance of power and facilitate the process of presidential nomination and legislative confirmation of justices. Indeed, electoral change appears to be the approach least likely to expand the grey hole while potentially filling it: if electoral outcomes enable sufficient judicial appointments to meet the quorum threshold (whether under old or new rules), the Court could then adjudicate the CCPA’s constitutionality.

However, relying on future electoral results offers no guarantee. Not all electoral outcomes would directly address the grey hole – resolution requires specific scenarios: either the end of divided government, or under divided government, the party with nomination power forming a coalition with minor parties to secure a legislative majority, or competing branches reaching a compromise driven by public pressure. Such uncertainties render future outcomes increasingly difficult to predict. And meanwhile, the constitutional order must bear the ongoing cost of paralysis.

To be sure: not all attempts to resolve the grey hole are implausible. Yet every solution carries inherent costs and risks due to the grey hole’s paradoxical structure, which weaponizes legal form against legal substance.