Judicial Review as a Solution to Political Gridlocks? A Study of Taiwan's Grand Justices Council Interpretations Regarding the Jurisdictional Disputes within the Political Branch
National Taiwan University Law Journal, Vol. 30, No. 2, pp. 251-89, 2001
Posted: 3 Jul 2009 Last revised: 19 Sep 2010
Date Written: 2001
Judicial activism vs. judicial self-restraint not only has long been a central topic in Western constitutional theory but also has come to the foreground of constitutional debates in the transition from authoritarian rule to democracy. In this article I address this issue by investigating the decisions of Taiwan’s Constitutional Court (Grand Justices Council of the Judicial Yuan) that dealt with the jurisdictional disputes over competence among different departments of the political branch. My analysis indicates that while the Constitutional Court rubber-stamped the political decisions under the authoritarian rule, it has played the decisive role in resolving political gridlocks since its bootstrapping Interpretation No. 261 of 1990. By providing constitutional foundation for the first general and popular election of members of the parliament in Taiwan’s history in its Interpretation No. 261, the Constitutional Court relegitimated itself as an impartial arbitrator with the trust of the political branch and the people. This observation defies the proposition that judicial review should stay away from the competence disputes among different political departments, which should be resolved through political channels such as inter-departmental dialogues or electoral politics. As Taiwan’s experience in the 1990s showed, judicial review is expected to and can provide solution to political gridlocks concerning the disputes over competence within the political branch when the political channels of election and inter-departmental dialogues are closed. Nevertheless, I argue that this institutional choice would face more challenges with the increasingly complex separation of powers structure resulting from Taiwan’s fragmented reforms on the constitutional design. I suggest that instead of turning to judicial review, the better way to address the disputes over competence within the political branch is to restructure and clarify the entire constitutional regime regarding separation of powers, which would keep judicial review from being dragged into the political whirlwind of power struggles among political departments.
Keywords: Taiwan’s Constitutional Court, judicial review, political question doctrine, separation of powers, democratic transition, competence dispute, constitutional change
Suggested Citation: Suggested Citation