The Birth and Rebirth of the Judicial Review in Taiwan－Its Establishment, Empowerment, and Evolvement

Abstract

This paper first briefly introduces several major models that explain the emergence of judicial review in an attempt to find one that best elucidates the situation in Taiwan. Yet, owing to its particular political history, no single model can fully explain the development of judicial review in Taiwan. Rather, different models may be used to account for different stages. During the foundational stage, the Court was subservient to the authoritarian regime. During its transition stage, the Court regained authority and began to function like a court that insurance theory presupposes. Owing to the changeable political environment and the lack of an unchallengeable authority, the need for a fair and apolitical arbitrator increased, a fact which explains the increase in judicial power. Besides, political manipulation, the Court also expanded its power actively and cautiously, even when society was highly divided after 2000. In new democracies, the tendency of judicialization has provided the Court with more opportunities to intervene in political decision-making processes. Nonetheless, this may spawn unintended political conflict that threatens to damage the integrity and authority of the judiciary.

Keywords: Taiwanese Constitutional Court, judicial review, Constitutional interpretation, insurance theory, hegemonic preservation