[Editor’s Note: This is Part I of our I-CONnect symposium on the 70th anniversary of the Taiwan Constitutional Court. We are grateful to our guest editor, Professor Chien-Chih Lin, for convening this group of contributors and bringing this symposium to our readers. The Introduction is available here.]
–Ming-Sung Kuo, Associate Professor of Law, University of Warwick; and Hui-Wen Chen, Research Assistant, University of Warwick
That the constitutional court breathes new life into an old constitution is a popular trope of the many stories about the living constitution in various jurisdictions, including Taiwan. That is not what we have in mind. In celebration of the long life of the Taiwan Constitutional Court (TCC), we aim to tell a different story about the living constitution in Taiwan.
Instead of another attempt to illuminate the TCC’s magnum corpus, our festschrift writing seeks to reveal four parallels between the TCC and the Republic of China (ROC) Constitution in their unusual life trajectory. Mirroring the originally neutered and then reborn ROC Constitution, the TCC was shackled to a malformed body at birth in China, followed by the existential struggle to be quorate after finding itself a new home on the island of Taiwan, and later meekly lent a helping hand to bestow life presidency on the Leader, Generalissimo Chiang Kai-Shek. To no one’s surprise, all this happened before the TCC emerges as the constitution’s guardian that it is. Let us unfold the constitutional story written in the TCC’s many lives.
Born with Malformed Bodies
The ROC Constitution was adopted by the Constituent National Assembly on 25 December 1946 and came into effect one year later. Notably, the inauguration of the first ROC Government established under the terms of the ROC Constitution was scheduled for mid-1948, although elections had already been held for national representative bodies between November 1947 and January 1948. The (First) National Assembly, which served as both the presidential electoral college and the constitutional convention, convened for the first presidential election in late March 1948 to launch the first ROC Constitution-governed Government. At that time, however, China was already engulfed in the civil war between the Communists and the Nationalists. In the name of maintaining the integrity of the nascent ROC Constitution, the National Assembly put off the presidential election and put on its hat of constitutional convention, adopting the so-called Temporary Provisions through the constitutional amendment process without changing the ROC Constitution proper on 18 April. As a result, the constitutional provisions of the checks and balances on emergency powers were effectively suspended with the counterinsurgency-oriented Temporary Provisions added on to the ROC Constitution. The National Assembly quickly put on the hat of presidential electoral college again, conferring presidency on Chiang Kai-Shek the next day. The ROC Constitution had already been crippled by an add-on emergency constitution when the ROC Government was eventually set in motion with Chiang’s inauguration on 20 May 1948.
Paralleling the crippled ROC Constitution, the TCC was born with a truncated body for different reasons. According to its parent organic law, the Council of Grand Justices, the TCC’s official designation, would come into existence with seventeen justices. Yet, five of the newly minted President Chiang’s seventeen nominees failed to receive the consent of the Control Yuan (one of the three national representative bodies alongside the National Assembly and the Legislative Yuan). Moreover, with two confirmed nominees declining Chiang’s appointment, the seventeen-member Council of Grand Justices had a reduced body when the inaugural cohort of ten justices took office on 26 July 1948. The TCC soon adopted an internal rule governing matters relating to its operation, including the quorum, in its first official meeting on 15 September. Yet, the TCC’s body continued to shrink. One of the inaugural ten died in November. Before it issued its first two rulings (Interpretations) on 6 January 1949, the TCC had been reduced to a council of nine, portending the TCC’s ensuing existential struggle.
Growing in the Quorum Shadow
When the Nationalists regrouped in Taiwan in December 1949 following their defeat by the Communists, the reassembled ROC Government was left with rump constitutional organs and a rump territory. Awaiting its fate when his wartime Allies were mulling over Taiwan’s post-WWII future, Chiang’s rump ROC Government faced a more imminent internal problem. To reinstate himself as the president in the place of the then Acting President LI Tsung-Jen, Chiang would need the National Assembly’s intervention. Yet, the rump National Assembly in Taipei could hardly gather half of its 3,045 deputies, the statutory quorum for businesses other than constitutional amendment. The question of quorum went even deeper indeed. As noted above, the ROC Government prosecuted its full-scale counterinsurgency campaign under the auspices of the Temporary Provisions. Yet, the constitutional add-on was time-bound with the stipulation that President convoke an extraordinary session of the National Assembly to decide on its fate by 25 December 1950. Agonized with the forlorn hope that the rump National Assembly would meet the constitutionally stipulated super quorum for a constitutional convention — two thirds of its full membership, the resigned Chiang eventually let the deadline elapse. The National Assembly did not convene until it met to elect Chiang to his second six-year term in 1954 following an eleventh hour legislation reducing the statutory quorum from half to one third. Falling far short of the super quorum, the desperate National Assembly simply resolved that the Temporary Provisions continued to be effective until its repeal. With the National Assembly’s struggle with the super quorum lingering, doubts continued to cloud the legality and legitimacy of Chiang’s ROC Constitution-decorated emergency regime.
Paralleling the add-on emergency constitution overshadowed by the National Assembly’s continuing struggle with the two-thirds super quorum, the TCC had its own quorum issue, too. As indicated above, when the TCC issued its first two rulings in January 1949, its size had shrunk to nine, just barely meeting its self-imposed quorum (half of the statutory full membership (seventeen)). Conscious of the TCC’s reduced body, Acting President Li nominated eight justices in March 1949 and the Control Yuan soon endorsed all of them. Yet, two confirmed nominees declined Li’s appointment, resulting in only six of Li’s nominees joining the remaining inaugural cohort of nine. Worse, only six out of the fifteen legally appointed justices eventually followed Chiang’s ROC Government to Taiwan during the tumultuous reconstitution period 1949-50, falling far short of the quorum of nine. The TCC was rendered defunct.
To resuscitate the TCC, Chiang could have just appointed more justices. Yet, Chiang first needed to solve a legal puzzle: Were the TCC seats left unoccupied by those who stayed in China ‘legally vacant’? If not, only two new justices could be added to the rump court comprised of Chiang’s loyal six, still falling short of the quorum of nine. Chiang did not fill the TCC vacancies until early 1952, resulting in the unusual hiatus between Interpretation No 2 (January 1949) and Interpretation No 3 (May 1952). Yet, Chiang’s mysterious procrastination was not without a reason. Two of the nine justices who remained in China had already died fortuitously by the end of 1951. At that time, only two of the loyal six remained in office in Taipei. Added with the two vacancies resulting from Li’s unaccepted job offers, the unquestionable vacancies were eight in total when Chiang nominated seven justices in March 1952. Joined by the seven new justices, the rump court was brought to life with the quorum of nine barely met. The nine-justice TCC wasted no time in lowering its self-imposed quorum in its first official meeting on 14 April. Coming out of the shadow of the quorum, the TCC concluded its existential struggle and grew steadily.
Midwifing Constitutional Dictatorship
The year of 1960 is a watershed in Taiwanese constitutional history. In 1960, Chiang turned his two six-year presidential terms into life tenure. The legal clouds over Chiang’s emergency regime eventually cleared out in the same year, with the Temporary Provisions converted into a permanent constitutional add-on. Both came to pass thanks to the National Assembly’s timely intervention. Yet, both required the National Assembly to put on its hat of constitutional convention. In the shadow of the two-thirds super quorum, how could the rump National Assembly square the circle?
As indicated above, the quorum for constitutional amendment was enshrined in the ROC Constitution itself and only the National Assembly could lower the super quorum. Yet, to lower the super quorum, the National Assembly must meet the super quorum in the first place. Such a chicken and egg situation was left untackled, despite a series of statutory manoeuvres on the non-constitutional quorum enabling the National Assembly to convene in time to re-elect Chiang in 1954.
Yet, Chiang’s ROC Government could not kick the can down the road any more when the issue of the presidential term limits became increasingly pressing with Chiang’s second six-year term scheduled to end on 20 May 1960. As a distant sequel to the TCC’s Interpretation No 31 of 1954, which led to the open-ended extension of the First Legislative and Control Yuan of 1948, Chiang turned to his constitutional oracles again for the way out of the constitutional predicament over the super quorum. Deputies of the National Assembly having already begun to register for the landmark 1960 session, the TCC issued Interpretation No 85 on 12 February. Thereby the TCC interpreted the full membership of the National Assembly as including only the deputies who were able to convene in Taipei, miraculously reducing the full membership of the National Assembly from 3,045 to around 1,000. Thanks to the TCC’s timely intervention, the hurdle for constitutional amendment was cleared without lowering the constitutionally-prescribed two-thirds super quorum.
No longer crippled by the quorum question, the National Assembly proceeded to lift the presidential term limits through the amendment of the constitutional add-on, the Temporary Provisions, and elect Chiang to his third six-year term. In the meantime, the legal uncertainties surrounding the ostensible sunset clause of the 1948 Temporary Provisions were finally dispelled in the same amendment. Waving its magic wand of constitutional interpretation, the TCC midwifed the constitutional change of 1960 that perpetuated Chiang’s time-bound emergency regime into a normal constitutional dictatorship.
Living a Reformed Life
The last parallel between the TCC and the ROC Constitution speaks to constitutional redemption and rebirth. There is no need to repeat the all-too-familiar story that the TCC overturned the infamous Interpretation No 31 in Interpretation No 261, which helped unblock the process of democratization and political reform by putting an end to the very long tricameral First Parliament of 1948 in 1991. Through its exercise of judicial bootstrapping in 1990, the TCC not only gave itself a new lease of life but also helped with the eventual abolition of the add-on emergency constitution, breathing new life to the ROC Constitution.
Unburdened by the Temporary Provisions, the ROC Constitution, an imposed constitutional order of Chinese origin, gradually redeemed itself in its new identity through a series of constitutional reform, eventually resurging as the supreme law of the land of Taiwan. Paralleling the ROC Constitution’s transformation, the TCC did not live just one good life in the past seventy years. Leaving its inglorious past behind, the reborn TCC now stands tall as constitutional democracy’s guardian.
Our story of four parallels is a snapshot of how a degenerate constitutional order was eventually saved in a reformed life. With the TCC’s convoluted institutional history revealed, the underlying law and politics in its magnum corpus can be better illuminated and duly appreciated. This is the way we pay tribute to the TCC when it celebrates its seventy years of history.
Suggested citation: Ming-Sung Kuo and Hui-Wen Chen, I-CONnect Symposium: The 70th Anniversary of the Taiwan Constitutional Court–Finding the Living Constitution in its Guardian’s Many Lives: Four Parallels, Int’l J. Const. L. Blog, Dec. 12, 2018, at: http://www.iconnectblog.com/2018/11/i-connect-symposium-the-70th-anniversary-of-the-taiwan-constitutional-court-finding-the-living-constitution-in-its-guardians-many-lives-four-parallels
 See Jiunn-rong Yeh, The Constitution of Taiwan: A Contextual Analysis 31-32 (2016).
 See id. at 34-36.
 See Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases 145-48 (2009).
 See Ming-Sung Kuo, Moving towards a Nominal Constitutional Court? Critical Reflections on the Shift from Judicial Activism to Constitutional Irrelevance in Taiwan’s Constitutional Politics, 25 Wash. Int’l L.J. 597, 604 (2016).
 See Yeh, supra note 1, at 36-48.
 See id. at 167-74.