The 2017 Global Review of Constitutional Law: Taiwan

Abstract

2017 was a sequel to 2016 in Taiwan’s constitutional chronology. Carried by the tailwind set in motion by the historic elections of 2016, the ruling Democratic Progressive Party (DPP) set sail for a series of structural reforms in 2017, a year free of elections. Comprehensive reforms on the pension of civil servants and schoolteachers have been pushed through the Legislative Yuan, although the question of constitutionality remains to be answered. In response to ceaseless calls for judicial reform, a presidential roundtable has put forward a wide-ranging proposal for revamping the judicial system, including the introduction of lay participation in criminal trials and the alteration of constitutional review. Despite the unsettled constitutional issues surrounding transitional justice, more fuel has been added to the quest for it with a series of formal investigations into the massive assets of the past behemoth, the Nationalist Party (Kuomintang [KMT]), and the general legislation on transitional justice. Finally, the clouds gathered around the question of same-sex marriage were blown away with the landmark Interpretation No. 748, by which the Taiwan Constitutional Court (TCC) paved the way for the legalization of same-sex marriage. In addition, the TCC revisited its own jurisprudence, breaking new ground in prisoners’ rights and freedom of speech.

Looking beyond the domestic constitutional landscape, Taiwan steered clear of the global wave of antidemocratic populism in 2017. Yet, it does not mean that popular democracy finds no place in Taiwan. With the lowering of legal thresholds for referenda, it remains to be seen whether the frequency of referenda would deepen democracy or set the stage for ambitious populist politicians.

Keywords: Taiwan Constitutional Court, Constitutional Law, Constitutional Politics, Transitional Justice, Same-Sex Marriage, JY Interpretation No 748, Popular Constitutionalism, Referendum