[Editor’s Note: This is Part II 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 and Part I is available here.]
–Cheng-Yi Huang, Associate Research Professor, Institutum Iurisprudentiae, Academia Sinica
Not every constitution has a chance to relive its life again. Not every constitutional court has a chance to rescue itself from plunging into the dust of history. The ROC Constitution is a rare example. It had been transplanted from one territory to another. It had ceased its major functions for almost forty years. It was enshrined as an immutable motto for national unification, which helped to legitimize the authoritarian rule of KMT (Kuomintang, or the Chinese Nationalist Party). Nowadays, the Constitution still represents two conflicting political identities: first, an anachronistic sovereignty without its claimed people (pre-1949 China) and second, a popular sovereignty with an anachronistic name (post-1991 Taiwan). However, the Taiwan Constitutional Court (“TCC”) has envisioned a new regime of rights protection and self-government after the lifting of martial law in 1987. However, the specter of authoritarian legality is not fully dispelled. The TCC so far has not audaciously reflected on its own dark history in the martial law era. Though its case law is forward-looking, its dealing with the past is critical to its future. This essay first explains how the TCC had engaged in the architecture of the KMT authoritarian rule and then moves to its zigzagging course to carve out a compromised democratization after the lift of martial law. I argue that the authoritarian legacy prompted the TCC to carry out “silent reforms,” which accidentally enhanced a formalist conception of the rule of law and fostered a culture of constitutional agnosticism. Finally, I discuss the conflicting identities under the shadow of constitutional. The constitutional agnosticism goes hand in hand with the nominal political representation of the ROC Constitution, which will be the most challenging task for the TCC in the following decades.
- Facilitating Authoritarian Rule
It all started with a crack. The ROC Constitution was passed in December 1946 and went into effect in 1947. The first meeting of the Inaugural National Assembly was convened in March 1948 while the Chinese Communist Party (CCP) won several key victories in northern China. Owing to the swirling of the civil war, members of the National Assembly passed the “Temporary Provisions Effective During the Period of National Mobilization for Suppression of the Communist Rebellion” (Temporary Provisions) in April 18, 1948, right before electing Chiang Kai-shek to the first ROC president.
The Temporary Provisions conferred unfettered emergency power to the president, bypassing institutional limitation set by the Constitution. However, to maintain its unfettered emergency power, the KMT government had to have the National Assembly to renew the Temporary Provision before November 1950 in Taiwan after its defeat of the Chinese Civil War. The Constitution required at least two third of the members to revise or to amend the Constitution, but only half moved to Taiwan. Also, the term limit of the National Assembly was six years, which meant that the first term of the National Assembly would have ended in December 1953.
To deal with the term limit, President Chiang Kai-shek issued a statement to the National Assembly in 1953, “the election for the next term of National Assembly is de facto implausible, so the delegates of the first term shall remain in office until the day on which the next National Assembly convenes.” The presidential statement was based on a literal interpretation of Article 29, which provided, “the term of office of the delegates to each National Assembly shall terminate on the day on which the next National Assembly convenes.”
However, the Constitution does not provide the same language for the Legislative Yuan and the Control Yuan. Therefore, the Constitutional Court weighed in. In J.Y. Interpretation No. 31, the TCC ruled, “owing to the national emergency, the election for the Legislative Yuan and the Control Yuan is physically implausible. However, if the two branches were to stop functioning for this reason, it would contradict the original intent of the Constitution to set up five branches. Therefore, members of the Legislative Yuan and the Control Yuan shall continue to fulfill their duty before the day of which the second term could be legally elected and convened.” This is the judge-made genesis of the “permanent Parliaments” in Taiwan.
Furthermore, in J.Y. Interpretation No. 85 of 1960, the TCC came up with the reasoning that the “total number of National Assembly Delegates” means those who were elected and were able to attend the meeting at the location of the Central Government, which was Taipei. The Court explained that the framers did not foresee the tremendous political catastrophe that the Republic was facing, so it had to interpret the Constitution so as to facilitate the function of the National Assembly and the Republic.
Not only in the cases of political power, but also in the terrain of constitutional rights, the TCC also deferred to the military government. In J.Y. Interpretation No. 80 of 1958, it gave court martial preemptive jurisdiction on the issue of political crime. Therefore, even though Article 9 of the ROC Constitution provides civilians with the right of not being tried by court martial, there are tens of thousands civilians tried in military tribunals on the grounds of treason and espionage. Moreover, while interpreting the bloody Betrayers Punishment Act, the TCC held in 1956 that if the defendant never submitted himself to the government (regardless whether he did participate in the Communist Party or not), or there was no evidence to prove that he had withdrawn from the Communist Party, he would always be regarded as a member of the CCP. (J.Y. Interpretation No. 68). This ruling is clearly against the doctrine of presumption of innocence. In 1970, the TCC even extended the age of culpability to persons under 14 years old in the cases of political crime. (J.Y. Interpretation No. 129) All these decisions aimed at facilitating the total rule of the authoritarian government during the cold war.
- Zigzaging Democratization: The Court as Moderator
After the lifting of martial law in 1987, the same rationale of “unforeseeable national emergency” still appeared in the TCC’s decisions. In No. 272 (1991), the TCC upheld Article 9 of the National Security Act, which prohibits any civilian, mostly political prisoners, from appealing their cases to the high court. In fact, the Act of Martial Law does allow civilians who were tried by court martial to bring their cases to ordinary courts, but the TCC held that the prohibition of National Security Act is necessary for the sake of legal stability, since martial law has been imposed for 38 years. Meanwhile, it justified the ruling in that Article 9 is a choice of the legislature. The TCC ignored the fact that the Legislative Yuan was still composed of non-elected representatives. To what extent, it could be regarded as a democratic legislature? The cases of political prisoners have been frozen for 30 years since then. It is only until 2018, the newly established Commission for Promoting Transitional Justice starts to vacate the judgments done by court martial.
In the course of democratization, the TCC had been zigzagging political compromises. It was brave enough to declare the permanent Parliaments as illegitimate in its Interpretation No. 261 of 1990. However, it also recognized the constitutionality of National Security Act in No. 265 of the same year, which set restriction on people on the “black list”, i.e. political dissidents in exile, to enter Taiwan. In Interpretation 558 of 2003, the holding of No. 265 was reconfirmed, even after 16 years of democratization. However, in the same year, the TCC overruled one of its most notorious decisions during the martial law era, Interpretation No. 68. One might argue that the swinging attitude of the TCC comes from its role of an insurer during political transition. On the one hand, it has to guarantee the old regime that it would not prosecute or try any political leader or collaborator (No. 272). Moreover, the constitutionality of National Security Act, as a safety net for the old regime, would be continuingly upheld even long after the lifting of martial law (No. 265 and No. 558). On the other hand, it has garnered leverage from the new president, Lee Teng-hui, and students movements to advance the agenda of democratization. Therefore, it successfully announced the unconstitutionality of the permanent Parliaments.
To heal the wound left by the authoritarian regime, the TCC started to adopt German doctrine of Rechstaat since early 1990s. At first, it applies the doctrine to administrative law cases. It would like to tame the apparatus of the authoritarian regime by formal requirement of legislative delegation, since most of the regulations rendered in the authoritarian time were promulgated by the executive branch with the blank check of martial law. By requiring clear and express delegation from the legislature consisted of national representatives, the TCC believes it could gradually transform the government into a democratic one. However, the emphasis on legislative delegation actually overburdened the legislature. The Legislative Yuan, though elected by the locals, was entangled with political battles throughout the 1990s. Most authoritarian regulations were simply pushed through the legislative process without any deliberation or revision. Thus, the façade of law and regulations was democratic and constitutional, but the substance remains authoritarian in nature. People in everyday life wondered why democratization did not improve laws and regulations to be more reasonable. Meanwhile, social distrust in the judiciary looms large after democratization, since it is the non-elected institution. The TCC rarely held the authoritarian law or regulation unconstitutional. However, in No. 567, it held an administrative rule regarding communist party members unconstitutional for the first time. In the decision, it announced the core of human rights is indelible, even in the time of emergency. However, it never dealt with the authoritarian rule as a whole and declared the KMT government had created an unconstitutional state. Its passivity intensified social distrust on the judiciary. The KMT, therefore, can still boasted its rule in the era of martial law as legitimate and constitutional.
The TCC created a new jurisprudence based on both the original text of the ROC constitution as well as the Additional Articles (i.e. amendments) after 1991. However, the amendments cannot overwrite the original text, since the latter one should be preserved as representation of the popular sovereignty of pre-1949 ROC. The juxtaposition of the 1947 constitution and post-1991 constitutional amendments engenders two conflicting constitutional identities. The former one legitimizes the KMT’s rule with the facilitative interpretations of the TCC. The latter safeguards democratic legitimacy with soaring decisions protecting constitutional rights. However, the TCC’s strategy of “leave-it-as-was” had made constitution as schizophrenia. Moreover, political cleavage between the Democratic Progressive Party and the KMT makes the issues of constitutional identity even more polarized. In brief, if the TCC cannot recognize the symptomatic problems of the authoritarian rule, the KMT’s legacy would continue and people in Taiwan would still regard themselves as only a portion of the constituency under the ROC constitution. In this sense, constitutional reengineering after democratization would be in vain, since people would continue to take the constitution-in-exile as idolatry, rather than a living document among citizens. In celebrating its 70th anniversary, the TCC is expected to reconnecting its people with the living constitution after democratization. The first step is to reconsider its own case law in the authoritarian time.
Suggested Citation: Cheng-Yi Huang, I-CONnect Symposium: The 70th Anniversary of the Taiwan Constitutional Court–The Second Life of a Constitutional Court: Taiwan Constitutional Court and its Struggling with the Past, Int’l J. Const. L. Blog, Dec. 13, at: http://www.iconnectblog.com/2018/11/i-connect-symposium-the-70th-anniversary-of-the-taiwan-constitutional-court-the-second-life-of-a-constitutional-court-taiwan-constitutional-court-and-its-struggling-with-the-past
 Jiunn-rong Yeh argues the 2005 constitutional revision has “profoundly transformed the ROC Constitution in Taiwan,” which he termed as “the first time in history, public sovereignty truly resides in the Taiwanese people.” See, Jiunn-rong, Yeh, The Constitution of Taiwan, p.48, Hart Publishing, 2016.
 Zong Tong Fu Gongbao [總統府公報] (Office of the President Gazette, Taiwan), no. 430 (September 1953), pp. 2-3.
 The Constitutional Court ruled in No. 76 of 1957, that National Assembly, Legislative Yuan, and Control Yuan were all “parliaments” from the perspective of constitutional authority and status.
 See Cheng-Yi Huang, “Frozen Trials: Political Victims and Their Quest for Justice”, in Jerome A. Cohen et al. eds., Taiwan and International Human Rights: A Story of Transformation, Springer, 2018. For further discussion on Taiwan’s quest for transitional justice, please refer to Jau-yuan Hwang, “Transitional Justice in Postwar Taiwan”, in Schubert G ed., Routledge Handbook of Contemporary Taiwan, pp. 168–173, Routledge, 2016.
 No. 313, 324 and etc. Also see Cheng-Yi Huang, “Judicial Deference to Agency’s Discretion in New Democracies: Observations on Constitutional Courts’ Decisions in Poland, Taiwan and South Africa”, in Susan Rose-Ackerman, Peter Lindseth, and Blake Emerson eds., Comparative Administrative Law (Second Edition), Edward Elgar, pp. 482-485, 2017.