Seventy Years On: The Taiwan Constitutional Court and Judicial Activism in a Changing Constitutional Landscape
Hong Kong Law Journal, Vol. 48, Part 3, pp. 995-1027 (2018)
38 Pages Posted: 3 Jan 2019
Date Written: 2018
In comparative work on judicial review in new democracies, the Taiwan Constitutional Court (TCC) has been portrayed as an instance of judicial activism in light of the process of democratisation. In our story of the TCC, we shed new light on the theme of judicial activism and democratisation. Situated in the 70-year-old TCC’s institutional continuity, its journey to an activist court turns out to be a story of judicial bootstrapping. We start with the accidental rebirth of the TCC on Taiwan, which lent timely constitutional cover to a struggling constitutional dictatorship in the 1950s. Through judicial bootstrapping in the mid-1980s, the TCC eventually redeems itself as an activist constitution guardian. Our story suggests that even a semblance of judicial review under a nominal constitution can be an asset to the political transition to democracy. We conclude with reflections on the TCC’s new challenges and its future role in post-democratisation Taiwan.
Keywords: Taiwan Constitutional Court (TCC), judicial activism, judicial bootstrapping, democratization, dual state, Taiwanese postwar constitutional history, same-sex marriage, Interpretation No 748, judicial politics, institutional continuity, constitutional complaints, Bill of Constitutional Litigation Act
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