—Ming-Sung Kuo, University of Warwick, UK
The 2025 Judgment: The Majority Quartet, the Concurring Solo, and the Absent Trio
The 2025 Judgment came four days after the Prime Minister’s highly controversial refusal to countersign a legislative bill on 15 December 2025. In the Opinion of the Court signed by five Justices, the Majority Quartet, joined by the Concurring Solo, declared the 2025 CCPA Amendment null and void for failing due process of lawmaking and violating the separation of powers principle to the extent that it undercut the functioning of constitutional review. As a result, it was declared that the CCPA was immediately restored to its pre-2025 Amendment condition.
As has been noted in the first instalment of this blog, the 2025 Judgment by the Majority Quartet and the Concurring Solo must answer the quorum question before it could be duly delivered, in the face of three Justices continuing to boycott the Judgment proceedings. The Opinion of the Court dissolved the quorum question in two steps. First, it postulated that the applicable law for review of constitutional issues regarding the revision of the CCPA, which concerns the exercise of constitutional review, must be the pre-revised CCPA. Moreover, this choice for the applicable law was dictated by logic; otherwise, according to the Opinion of the Court, it would be paradoxical for the court to apply the law aimed at curtailing its constitutional power in considering whether the impugned law unconstitutionally restricted its function (paras 38-43). After establishing the pre-2025 Amendment CCPA as the applicable law for the TCC Judgment proceedings, the Opinion of the Court took the second step in drawing an analogy between judicial boycott – as manifested in the Absent Trio – and judicial disqualification (paras 46-51). According to the CCPA, a Justice who is disqualified under the CCPA stipulations will not count towards the total number of the incumbent Justices (article 12). Thus, through the foregoing analogy, the Opinion of the Court excluded the three boycotting Justices from the counting of ‘incumbent Justices’ (paras 52). In this way, the TCC was quorate with five Justices present to deliver the 2025 Judgment under the original article 30 of the pre-2025 Amendment CCPA as all incumbent Justices (five) were present in the proceedings, more than the quorum of two-thirds of the total number of the incumbent Justices.
Yet the two-step reasoning of the Opinion of the Court was not only unacceptable to the Absent Trio but it also failed to convince all the five ‘incumbent Justices’. Despite agreement to the holding that the 2025 CCPA Amendment was unconstitutional, the Concurring Solo broke ranks with the Majority Quartet on the analogy between judicial boycott and judicial disqualification. Working on the presumption of constitutionality, the Concurring Solo suggested that the TCC could meet the quorum under the 2025 CCPA Amendment through an acrobatic, gap-filling, ‘statute-correcting’ construction of the special quorum rule under paragraphs 5 and 6 of the new article 30 – a key echoed in the Absent Trio’s extramural statement. Thus, the Majority Quartet’s reconstruction of incumbent Justices was not only unnecessary but also groundless. Taken as a whole, the Concurring Solo joined the Majority Quartet in the 2025 Judgment only for pragmatic reasons, falling short of endorsing the logic-steered reasoning in the Opinion of the Court as seen in another concurring signed by three Justices of the Majority Quartet.
Outside the court, the Absent Trio did not mince their words. With an extramural statement as mentioned in the first instalment of this blog, they denounced the five-Justice TCC delivering the 2025 Judgement as not a properly organized court of law. They further contended that any and every Judgment or Order (including the 2025 Judgment) by such an unlawfully organized tribunal would have no legal force. Yet such accusatory rhetoric obscured the formalist thinking the Absent Trio shared with the Majority Quartet. Sticking to the presumption of constitutionality of a duly enacted statute and the parliament’s constitutionally-granted discretion in legislating the organization and jurisdiction of the constitutional court, the Absent Trio emphasized on the subjection of the TCC and all Justices to the 2025 CCPA Amendment. The Absent Trio started from this dogmatic stance on the relationship between the parliament and the power of constitutional review, which set them apart from the Majority Quartet’s logic postulate, and thus insisted on the 2025 CCPA Amendment – instead of the pre-Amendment CCPA – as the applicable law in reviewing the constitutionality of the 2025 Amendment itself. Thus, with their absence from the court proceedings, the TCC could not be quorate even if the special all-incumbent quorum rule of the new article 30 (paras 5-6) applied to such situation as the Concurring Solo’s statute-correcting construction suggested.
Meeting the ‘Convention’ Court in Taiwan
As suggested above, the Absent Trio and the Majority Quartet, the antagonists in the 2025 Judgment, deduced their conclusions from logic and dogma. Each pushed its postulate to the logical limits and adhered to formalist thinking to a fault, only to see the institution of the TCC broken into pieces. In the next Judgment promulgated on 2 January 2026, the TCC repeated the court drama as seen in the 2025 Judgment. The Opinion of the Court was again signed by five Justices and continued to address the quorum question by reconstruction of ‘incumbent Justices’ (paras 6-10), while the Concurring Solo continued to question the Majority Quartet’s analogy of judicial boycott to judicial disqualification. As for the Absent Trio, they continued to boycott, too, although this time they did not speak aloud outside the court. Far from resolving the slow-burning crisis of the TCC as a rump court, the 2025 Judgment, with the exhibited judicial disunion, has induced a genuine constitutional crisis that may devour the TCC’s authority.
As the Concurring Solo noted in the 2025 Judgment, the Majority Quartet’s reconstruction of ‘incumbent Justices’ by analogizing Justices who boycotted on grounds of individual legal convictions to those who are disqualified as required by the law was anything but conventional. The Concurring Solo only joined the Majority Quartet, despite the quorum, to restore the operation of the TCC. As testified to by the Judgment of 2 January 2026, the reinstated TCC is now a court of five as there are only five incumbent Justices and will have to belabour the question of quoracy in the future as long as the Absent Trio continue to boycott and the TCC’s seven vacancies remain unfilled. Seen in this light, the TCC seems to have new membership – five instead of eight – and work on a new starting point from which it has to prove itself quorate to qualify as a court of law in every case. It is virtually a new court, if you will.
Remaining a rump court from the constitutional perspective, the TCC’s resuscitation from a year-long hiatus under the Majority Quartet’s new rendering of the quorum reminisces of what Bruce Ackerman and Neal Katyal call the ‘unconventional argument’. Drawing on precedents of defective parliaments as conventions in English constitutional history in theorizing the American founding, they identify the core of the unconventional argument in efforts to ‘construct[] new lawmaking processes out of older ideas and institutions’ despite ‘not play[ing] by the established rules’, while ‘tr[ying] to compensate for … legal deficiencies through a remarkable bootstrapping process’ (pp 477-8). The analogy of judicial boycott to judicial disqualification in the 2025 Judgement was not free of legal deficiencies as acknowledged by the Concurring Solo, but the Majority Quartet only constructed the ‘incumbent Justices’ as excluding boycotting Judges out of the CCPA provisions, including the quorum rule. The unconventional solution to the quorum in the 2025 Judgment is thus indicative of the ‘convention’-like institutional character of the reinstated TCC of five Justices. While the 2025 Judgment’s unconventional solution to the quorum seems to be necessary for the TCC’s bootstrapping effort, the success of such effort relies on more than the bootstrapping Judgment itself.
Judicial Bootstrapping at the Limits of Legitimacy by Legality: Playing Constitutional Hardball, Speaking the Language of Exception
Engaged in a bootstrapping exercise in the 2025 Judgment, the TCC also reached the limits of law, as revealed in its unconventional argument. At the limits of law, the TCC was no longer able to pivot its legitimacy to legality. Rather, it must seek legitimacy beyond the law proper. The trouble is that as with other constitutional courts, the TCC is entrusted to interpret the Constitution as a court of law instead of just a coordinate constitutional power with the political branch. Judicial bootstrapping is therefore never easy and always risks failure. The semblance of legality may well add up to the persuasiveness of a bootstrapping judgment and thus increase its odds of success. Still, legal trappings do not give a judicial bootstrapping exercise the legitimacy needed for its authority. It takes judicial statesmanship beyond legal reasoning to turn attempted judicial bootstrapping into enduring constitutional authority – and this will only materialize when judges can bring its critics, within and without the court, around to seeing the unconventionality of its bootstrapping decision as a function of law.
The TCC’s 2025 Judgment is no exception. Yet, blown away by the political whirlwind, the TCC had been embroiled in high politics playing out between the executive and the legislative amid unrelenting partisan rivalry. The dispute over the 2025 CCPA Amendment eventually brought it to the liminal state between law and politics. Disagreeing on their judicial duties in such liminal state, Justices who stopped short of judicial engagement were seen taking part in the game of constitutional hardball. Thrown the constitutional hardball as played out in judicial boycott, those who decided to step up to the plate could only hit back even harder. After all, that is the lesson from the paradigm case of constitutional hardball between political actors. The 2025 Judgment’s unconventional approach to the counting of ‘incumbent Justices’ was just a hardball response to the constitutional hardball played by the Absent Trio.
Paradoxically, engaged in the game of constitutional hardball, the Majority Quartet were no less political than the Absent Trio. Down this political road, the 2025 Judgment seemed set to turn to exception to justify its unconventionality in the final analysis (para 52). At the limits of law, Justices chose to speak the Schmittian language in the game of constitutional hardball in the hope that the bootstrapping 2025 Judgment would redeem the TCC’s institutional character at last.
Here comes the catch. Rendering the 2025 Judgment in the language of exception, the TCC can only hope to win authority for its bootstrapping exercise when it is firmly embedded in the law. The legal embeddedness of the bootstrapping 2025 Judgment will come to pass when its language of exception fades into oblivion. Yet, with more and more constitutional issues formulated in existential and belligerent terms such as democratic civil war, Taiwan is sleepwalking towards a crisis of constitutional reasoning, while the language of exception pervades constitutional discourse – of which the TCC’s 2025 Judgment is an example. When exception dominates constitutional argument, the 2025 Judgment will be remembered for its exceptional character unembedded from the law and thus suffer from deficiency in legitimacy. This is the TCC’s tragedy after delivering the 2025 Judgment. With the 2025 Judgment, the TCC is entering an uncharted constitutional territory.
Suggested citation: Ming-Sung Kuo, Judicial Bootstrapping or Constitutional Hardball? The (Un)Conventionality of the Taiwan Constitutional Court’s Invalidation of the 2025 Amendment of the Constitutional Procedure Act, Part II, Int’l J. Const. L. Blog, Jan. 21, 2026, at: http://www.iconnectblog.com/judicial-boostrapping-or-constitutional-hardball-the-unconventionality-of-taiwan-constitutional-courts-invalidation-of-the-2025-amendment-of-the-constitutional-procedure-act-part-ii/