[Editor’s Note: This is Part III 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, Part I is available here, and Part II is available here.]
–Chien-Chih Lin, Assistant Research Professor at Institutum Iurisprudentiae, Academia Sinica
Recent decades have witnessed the migration of the proportionality principle around the world to the extent that it has become the most dominant and powerful interpretive weapon in the judicial arsenal in most countries, and Taiwan is no exception. In fact, Taiwan may be one of the best cases to study proportionality because of three reasons. First, the Taiwan Constitutional Court has exercised the power of judicial review in the past seven decades even during the authoritarian period, and proportionality has been one of the most important tools for the judiciary to either counteract or dialogue with the political branches. Second, notwithstanding that the Constitution in Taiwan arguably expressly stipulates the proportionality principle as a constitutional mandate to protect human rights, legal reception, particularly from both Germany and the United States, is evident in Taiwan’s constitutional jurisprudence. Nonetheless, along with the increasing reliance on proportionality, the Constitutional Court’s understanding and application of proportionality has changed in the past several years. This involves the third reason: Taiwan Constitutional Court has adapted proportionality to suit local needs and developed its own interpretation of proportionality.
For starters, Article 23 of the Constitution in Taiwan stipulates “All the freedoms and rights enumerated . . . shall not be restricted by law except such as may be necessary to prevent infringement upon the freedoms of other persons, to avert an imminent crisis, to maintain social order or to advance public welfare (emphasis added).” Although the word “proportionality” is not explicitly mentioned in the Constitution, the four goals identified by the said Article are seen as the embodiment of the legitimacy test. Additionally, the Taiwan Constitutional Court has used the word “necessary” as the textual peg on which to hang the necessity test of proportionality for decades. Specifically, the Court mentioned the necessity test for the first time in a case involving administrative control over freedom of publication in 1964. It is important to note that although the Court seemed to invoke the necessity test in this case, most constitutional law scholars do not regard this decision as the genesis of proportionality in Taiwan, because it is unclear whether Justices at that time had the concept of proportionality in mind.
Later on, the said Article gradually came to be seen as a constitutional mandate that requires every state action to pass the gauntlet of proportionality, not simply the legitimacy test and the necessity test. In Interpretation No. 414, a typical case involving commercial speech, the Court expressly mentioned the word “proportionality” in a constitutional sense for the first time. Since then, the Court had mentioned the word “proportionality” in both its holdings and reasoning, but it never explicated what constitutes proportionality in the context of Taiwan until Interpretation No. 476, a case that involves the death penalty. In this decision, the Constitutional Court deviated from the conventional understanding of proportionality that includes four prongs and argued instead that it includes three subsets: “due purposes, necessary means, and proper restrictions.” That is, the Court neglected the suitability test, the second prong of proportionality as commonly understood. This parochial understanding of proportionality did not last long, however. The same Justices put the suitability test back to proportionality several years later in an eminent domain decision. After the first party turnover in 2000, new Justices followed the conventional understanding of proportionality that is composed of four subtests. So far, proportionality in Taiwanese constitutional jurisprudence has been quite similar to the canonical understanding of proportionality throughout the world. Nevertheless, the Court does not simply transplant proportionality from Germany or other jurisdictions, but distinguishes different levels of review scrutiny, depending on the subject-matter at issue. That is, the understanding and practice of proportionality in Taiwan has gradually become more complicated.
To be more specific, the Court has fused proportionality in German constitutional jurisprudence and the tiered standards of judicial review in American constitutional jurisprudence into Taiwan’s proportionality. This should not be surprising given that most of the Justices with scholarly backgrounds get their doctoral degrees from either the United States or Germany. Accordingly, if the Court decides to take a more lenient attitude because of either institutional competence or separation-of-powers concerns, it usually does not require the least restrictive means in practice when applying the necessity test. Under this scenario, proportionality is actually closer to a rational basis rather than strict scrutiny in the jargon of American jurisprudence. This may also explain why the necessity test seems to be more fatal in some cases than it is in others.
The evolution of proportionality in Taiwan should be attributed to at least two factors: the first is institutional and the second political. Institutionally, the Justices with scholarly backgrounds contributed considerably to the formation of proportionality in Taiwan. Unlike some other top courts that is composed of practitioners, such as judges and lawyers, the Taiwan Constitutional Court must comprise a certain number of scholars, according to the Judicial Yuan Organization Act. Consequently, scholars have always had some, sometimes significant, clout on the bench since the foundation of the Court. Moreover, due to Taiwan’s educational policy, students who wanted to study law abroad with governmental funding would go to Europe during the post-WWII era. After graduation, some of them became gurus in Taiwan’s legal academia and were appointed to the Court. Naturally, they brought what they had learned back to Taiwan not only in the classroom but also in the courtroom, affecting not only their students but also their colleagues. After appointment, they have continued to influence the Court through either internal deliberation or their separate opinions. Step by step, even Justices with different educational or professional backgrounds have accepted proportionality as the paramount interpretive doctrine in Taiwan and collaborate to enrich its content.
Politically, the ignorance, adoption, reliance, and articulation of proportionality actually reflects the cataclysmic shift of political atmosphere in Taiwan, notwithstanding that the wording of Article 23 has never been revised. During the authoritarian era, the Constitutional Court sided with the government most of the time, although it ostensibly invoked the necessity test. After democratization, it invoked other lenient principles, such as the non-delegation doctrine or the principle of clarity and certainty of law (Rechtsbestimmtheitprinzip), more often than proportionality, at the early stage of political transformation. Compared with proportionality, these doctrines place less burden of justification on the political branches and thus decrease the likelihood of political grudge or non-compliance. As democracy becomes more full-fledged, the Court starts applying proportionality “with teeth.” It was perhaps a coincidence that the Court firstly applied proportionality in 1996, the year when the President was popularly elected for the first time in the history of Taiwan. But the frequency and intensity of the application of proportionality do escalate as democracy becomes more full-fledged.
This integration has become one of the most remarkable features of Taiwan constitutional jurisprudence and actually has two normative implications that may enrich the discussion on proportionality. First, one of the advantages of proportionality is that it allows the judiciary to avoid head-on conflict with the political branches by adjusting the intensity of judicial review without compromising judicial authority. The performance of the Taiwan Constitutional Court vividly evinces why proportionality is strongly welcomed by national apex courts around the globe. On the one hand, every state action theoretically has to survive the scrutiny of proportionality as interpreted by the Court; on the other hand, proportionality as understood by the Court is not a rigid criterion that always literally demands the least restrictive means. Secondly, the integration also echoes the debate on the migration of proportionality. Being one of the many countries that apply proportionality comprehensively in constitutional controversies, Taiwan’s experience suggests that the understanding and implementation of proportionality still vary at the concrete level. From this perspective, the so-called global constitutionalism, particularly regarding the spread of proportionality across national borders, holds true only at a procedural level. If the concept of constitutionalism includes more than a thin version of rule of law, the idea of global constitutionalism predicated on proportionality is self-defeating to a considerable extent precisely because of the flexibility proportionality grants to local judges.
Suggested Citation: Chien-Chih Lin, I-CONnect Symposium: The 70th Anniversary of the Taiwan Constitutional Court–The Evolution of Proportionality in Taiwan Constitutional Jurisprudence, Int’l J. Const. L. Blog, Dec. 14, at: http://www.iconnectblog.com/2018/11/i-connect-symposium-the-70th-anniversary-of-the-taiwan-constitutional-court-the-evolution-of-proportionality-in-taiwan-constitutional-jurisprudence
 See Jau-Yuan Hwang, Development of Standards of Review by the Constitutional Court from 1996 to 2011: Reception and Localization of the Proportionality Principle, 42 NTU L.J. 215, 239-40 (2013) (in Chinese); Shu-Perng Hwang, The Principle of Proportionality in the Trend of “Hierarchicalization”, 19 Academia Sinica L.J. 1 (2016) (in Chinese).
 I would like to thank Professor Cheng-Yi Huang for the discussion on this point.