Moving Towards a Nominal Constitutional Court? Critical Reflections on the Shift from Judicial Activism to Constitutional Irrelevance in Taiwan’s Constitutional Politics

Washington International Law Journal, Vol. 25 (3), 2016

45 Pages Posted: 23 Mar 2016 Last revised: 29 Apr 2017

See all articles by Ming-Sung Kuo

Ming-Sung Kuo

University of Warwick - School of Law

Date Written: 2016

Abstract

The Taiwan Constitutional Court (TCC, also known as the Council of Grand Justices) has been regarded as a central player in Taiwan’s transition to democracy in the late twentieth century. Transforming from a rubberstamp under the authoritarian regime into a facilitator of political dispute settlement, the TCC channelled volatile political forces into its jurisdiction. Thanks to the TCC’s judicial activism, the judicialization of constitutional politics was characteristic of Taiwan’s democratization in the last two decades of the twentieth century. The TCC scholarship asserts that the TCC has continued to play the pivotal role in Taiwan’s constitutional politics in the twenty-first century. Taking issue with this popular view, this article focuses on twenty-first century TCC case law to argue that Taiwan’s constitutional politics has moved towards de-judicialization as the TCC has gradually turned away from judicial activism in the face of escalating constitutional conflicts. With the TCC retreating from constitutional politics, this article argues that its constitutional jurisdiction is becoming nominal with the Constitution losing its grip on politics again.

Keywords: Taiwan Constitutional Court, Judicial Activism, Constitutional Politics, Judicial Constitutionalism, Judicialization of Politics, Nominal Court, Dejudicialization, Karl Loewenstein, Democratic Transition, Comparative Constitutional Studies, Single Case Research, Thick Description

Suggested Citation

Kuo, Ming-Sung, Moving Towards a Nominal Constitutional Court? Critical Reflections on the Shift from Judicial Activism to Constitutional Irrelevance in Taiwan’s Constitutional Politics (2016). Washington International Law Journal, Vol. 25 (3), 2016. Available at SSRN: https://ssrn.com/abstract=2753274

Ming-Sung Kuo (Contact Author)

University of Warwick - School of Law ( email )

Gibbet Hill Road
Coventry, CV4 7AL
United Kingdom

HOME PAGE: http://warwick.ac.uk/fac/soc/law/people?id=4945a0b0c6550cc21bbcc89cf0b570af

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