–Ming-Sung Kuo, Associate Professor of Law, University of Warwick; and Hui-Wen Chen, Research Assistant, University of Warwick
Born Again Thirty Years Ago
Seventy years is a milestone for any constitutional court in the world, including the Taiwan Constitutional Court (TCC), which celebrated its 70th birthday in 2018. Yet, it is by putting Taiwan’s very long First Parliament to death thirty years ago that the TCC has emerged as one of the most progressive courts in new democracies. On 21 June 1990 when the Taiwanese still had no right to vote on their President and the First Parliament of 1948 was dominated by octogenarians elected in China, the TCC rendered J.Y. Interpretation No. 261, declaring that the First Parliament must give way to new elections and those elected over forty-years ago must go by the end of 1991.
Much ink has been spilled on how the TCC redeemed itself as the guardian of the constitution with this great decision, paving the way for Taiwan not only standing as a robust democracy but also emerging as one of the most liberal societies in Asia. As the TCC recently struck down the criminalization of adultery in the Penal Code following its landmark decision that recognized same-sex couples freedom of marriage in 2017, the TCC has time and again proven itself the progressive force by ridding the Taiwan society of one traditional yoke after another. Seen in this light, the TCC is another example of how the court helps consolidate a nascent democracy through its intervention in politics in the name of constitutional rights. Yet, the real story of the rise of the TCC from the ashes of the First Parliament of 1948 in 1990 belies a different complexion of the TCC than has been created in the received narrative. We debunk the myth about the TCC’s rebirth by answering three questions concerning its germination in J.Y. Interpretation No. 261.
Is J.Y. Interpretation No. 261 Great?
The answer is yes and no. J.Y. Interpretation No. 261 is great to put a very long parliament to death. Truly, given the political drive for democratization in Taiwan, the octogenarians-filled First Parliament was already doomed in 1990, with or without the TCC interpretation. Nevertheless, J.Y. Interpretation No. 261 helps to set Taiwan’s transition to a full-fledged democracy on the reform course instead of swerving to the extra-legal revolutionary road. This is a great achievement.
Yet, J.Y. Interpretation No. 261 is far from a great piece of work: the reasoning is obscure; the end date for the octogenarian parliamentarians – 31 December 1991 – is set without justification; the provision for a nationwide party list in the election of a new Parliament is nothing but judicial creation. If the authority of the court ultimately pivots on persuasion through sound reasoning, J.Y. Interpretation No. 261 should have been questioned for its authority. Defying the conventional wisdom, the TCC has essentially bootstrapped itself out of institutional dormancy with an unsound decision at its own rebirth. Is the TCC’s reasoning relevant at all in the making of constitutional democracy in Taiwan?
Does Judicial Reasoning Matter in the TCC’s Rise?
To answer this question brings up the TCC’s second convention-defying feature: it has made the constitution relevant again by its expected role in the power play during Taiwan’s transition to democracy not through its delivery of constitutional rights. One of us has argued that the TCC defies the conventional wisdom – ie, the constitutional court in a new democracy finds legitimacy in the delivery of constitutional promise as manifested in fundamental rights – by establishing itself through its continuous intervention in high power politics. This by no means suggests that the TCC has been indifferent to the protection of fundamental rights. Rather, it speaks to the foremost challenge facing the TCC in the critical juncture of Taiwan’s political transition: how did the TCC become the go-to constitutional body in the attempt to draw the curtain on the First Parliament of 1948?
At that time, the TCC was anything but the flame keeper of democracy. Rather, only with the sanction of J.Y. Interpretation No. 31 of 1954 was the life of the First Parliament outrageously prolonged. With the very long Parliament of 1948 becoming the constitutional laughing stock and how the curtain could be drawn on it emerging as the bone of contention among differing political forces, the TCC was called in to give its blessing to the ruling party’s preferred solution. To put it bluntly, J.Y. Interpretation No. 261 was a set piece in political choreography. The referral resulted from a resolution of the Legislative Yuan – the predominant chamber in the tripartite parliament – initiated by the opposition with the support of the ruling party; the end date for the octogenarian parliamentarians and the controversial provision for a party list mirrored the ruling party’s agenda. Despite the devil in the details and the unsound reasoning, however, J.Y. Interpretation No. 261 emerged as the constitutional bridge to political reform and the TCC became the godsend in unlocking political gridlocks in the public eye. Seen in this light, the constitution was made relevant again thanks to the TCC’s consequential conclusion, not its Delphic reasoning.
As Taiwan embarked on its road to constitutional democracy following the end of the First Parliament, the constitution was continually tested by contentious power politics and the TCC was turned to time and again throughout those political dramas. As in J.Y. Interpretation No. 261, the TCC not only made itself the focal point of constitutional politics but also drew public attention to the constitution in political vortexes. With its decisions rather than reasoning at momentous times, the TCC gradually emerged as the reliable allay of reform forces and eventually extended its reach beyond power politics.
Yet, there is a piece missing in the puzzle about the rebirth of the TCC: must it be the TCC that put the First Parliament to death? This goes to the heart of the secret about the longevity of the TCC.
Is J.Y. Interpretation No. 261 the Destiny?
As noted above, J.Y. Interpretation No. 261 is essentially a long-delayed sequel to J.Y. Interpretation No. 31. Midwifing the very long First Parliament nearly forty years ago, the TCC was then entrusted with ending the life of that constitutional Frankenstein not because of the insurance consideration among rivalling political forces. Nor did the TCC contribute to the preservation of any political hegemony by killing the Frankenstein in 1990. Rather, as with its worse half, J.Y. Interpretation No. 261 reflected the underlying belief in institutional continuity through the law that materialized in China’s long quest for modernity and was transplanted to Taiwan after 1949 when a rump Chinese Nationalist Government was set up in the former Japanese colony.
As playing by the rule was the necessary condition for China to be eventually treated as an equal member of the family of the nations at the height of the Second World War, formal legality has long played a pivotal role in the Chinese Nationalist imagination of the legitimate rule. Constitutional blessings are thus indispensable to the perpetuation of the First Parliament and its eventual demise. It is under this belief that the TCC has survived Taiwan’s decades-long martial rule and then transfigured itself into the guardian of constitutional democracy that it is.
Long Live the Court!
Since its choreographed but bootstrapping J.Y. Interpretation No. 261 thirty years ago, the TCC has emerged as a strong player in Taiwan’s continuing progress towards a thriving constitutional democracy resting on human rights values. Yet, the legacy of J.Y. Interpretation No. 261 that the TCC made the constitution relevant by solving the seemingly unsolvable problem at the behest of the political forces has cast a long shadow on its role vis-à-vis constitutional players within and without the government. As it turns out, the TCC’s active intervention in the political process is not an institutional aberration in the time of transition. It remains so even after the democratic legislative process has been unlocked since the departure of several hundred octogenarian parliamentarians in 1991. Whether this indicates the TCC’s strength or the weakness of parliamentary democracy in Taiwan remains to be seen. As suggested by the Legislative Yuan’s subservient response to the executive amid the Covid-19 pandemic, the future of parliamentary democracy in Taiwan is still a known unknown. Thanks to the septuagenarian TCC, however, there is no need to worry about preparing the obituary for the parliament in Taiwan, at least for now. Long live the TCC!
Suggested Citation: Ming-Sung Kuo and Hui-Wen Chen, Research Assistant, University of Warwick, “The Parliament Is Dead, Long Live the Court”: Thirty Years after the Rise of the Taiwan Constitutional Court from the Ashes of Taiwan’s Very Long Parliament, Int’l J. Const. L. Blog, June 27, 2020, at: