[Editor’s Note: I-CONnect is pleased to feature a one-week 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.]
–Chien-Chih Lin, Assistant Research Professor, Institutum Iurisprudentiae, Academia Sinica
Established in 1948, the Taiwan Constitutional Court (TCC) is the oldest constitutional court in East Asia, celebrating its seventieth anniversary this year. Notwithstanding that Taiwan has transformed itself from an autocracy to a democracy for only three decades, the TCC has exercised the power of judicial review continually even during the authoritarian era. It has helped consolidate democracy in Taiwan by declaring constitutional amendments unconstitutional, and made huge contribution to advance rights protection in Taiwan. One of its landmark decisions in recent years is the same-sex marriage decision that makes Taiwan the first Asian jurisdiction to legalize same-sex marriage. Enjoying high degree of public confidence and trust, the TCC has been dubbed one of the most successful constitutional courts in the world. During the past seven decades, however, its records are by no means always so amazing. This online symposium includes four essays that introduce the evolution of the TCC, including its ever changing role, function, and jurisprudence in Taiwan.
To begin with, Ming-Sung Kuo (University of Warwick) and Hui-Wen Chen’s (University of Warwick) essay entitled “Finding the Living Constitution in Its Guardian’s Many Lives” reveals four parallels between the TCC and the Constitution of Republic of China. Specifically, the TCC was first born malformed in China, struggled existentially to be quorate in Taiwan, midwifed Chiang Kai-shek’s constitutional dictatorship before it was reborn as the guardian of the constitution.
Cheng-Yi Huang (Academia Sinica) focuses on how the TCC participated in the architecture of the authoritarian rule of law at the cost of rights protection and democratic governance during the authoritarian period. His essay, “The Second Life of a Constitutional Court: Taiwan Constitutional Court and Its Struggling with the Past” delineates the zigzagging route of the TCC in carving out a compromised democratization after the lifting of martial law.
Chien-Chih Lin (Academia Sinica) argues in his essay “The Evolution of Proportionality in Taiwan Constitutional Jurisprudence” that one of the most remarkable features of the TCC’s jurisprudence in the past decades is that it has fused proportionality in Germany and the tiered standards of judicial review in the United States into proportionality in Taiwan. This should be attributed to not only the institutional design of the court but also the change of political environment.
Finally, Wen-Chen Chang (National Taiwan University) suggests in her essay, “Has Taiwan’s Constitutional Court Fostered Sex/Gender Equality?”, that although the Constitutional Court has substantially advanced sex/gender equality, its case laws have not been strong in ensuring substantive equality, affirming sexual and reproductive rights, and tackling private discrimination. Thus, women groups have in recent years made a strategic turn away from the Constitution to international human rights instruments.
Suggested citation: Chien-Chih Lin, Introduction to I-CONnect Symposium: The 70th Anniversary of the Taiwan Constitutional Court, Int’l J. Const. L. Blog, Dec. 11, 2018, at: http://www.iconnectblog.com/2018/11/introduction-to-i-connect-symposium-the-70th-anniversary-of-the-taiwan-constitutional-court