Between Choice and Tradition: Rethinking Remedial Grace Periods and Unconstitutionality Management in a Comparative Light

Abstract

Recent experiences of constitutional review in the Common Law world have received increasing attention in comparative constitutional law scholarship. Looking beyond the Common Law jurisdictions, this Article investigates into the influence of variations on unconstitutionality management and changing constitutional politics on the functional mutation of remedial grace periods. Through a case study of Taiwan in a comparative light, it argues that legal tradition and the court’s role vis-à-vis the political branch in the dynamics of constitutional politics jointly contribute to the multifunctional role of remedial grace periods in unconstitutionality management. As part of unconstitutionality management across constitutional jurisdictions, the granting of remedial grace periods is not simply the manifestation of judicial strategy. The argument unfolds in three main Parts. Part II first compares the use of remedial grace periods in constitutional review under the Civilian-Continental and the Common Law models. After drawing out the different paths toward unconstitutionality management in comparative constitutional review, Part III conducts a functional analysis of remedial grace periods in the case law of the Taiwan Constitutional Court (TCC). It is observed that the three forms of remedial grace periods—bridging, nudging, and hedging—as indicated in the TCC case law are informed by the conceptual framework of graduated unconstitutionality borrowed from the Civilian-Continental model. Part IV further analyzes how remedial grace periods have been instrumental to the TCC’s realization of its institutional potential. In conclusion, the TCC’s continuing and frequent prescription for remedial grace periods indicates its default position in constitutional remedies, which is both informed by the Civilian-Continental model and shaped by its formative experience at the dawn of democratization.

Keywords: remedial grace period, suspension orders, constitutional remedies, unconstitutionality management, comparative constitutional review, graduated unconstitutionality, invalidity vs. incompatibility, judicial bridging, judicial nudging, judicial hedging, Taiwan Constitutional Court (TCC)