—Ming-Sung Kuo, University of Warwick, UK
Introduction
On 19 December 2025, the Taiwan Constitutional Court (TCC) delivered its only Judgment (as opposed to Order) of the year (hereinafter the 2025 Judgment), invalidating the 2025 amendment of the Constitutional Court Procedure Act (CCPA) on constitutional grounds of due process of lawmaking and separation of powers. Set apart from the TCC Judgment preceding it – issued on 28 October 2024 – by 417 days, the 2025 Judgment is anything but normal. For one, it set a precedent for the TCC’s self-policing the constitutional limits on statutory regulation of how its power can be exercised; for another, the TCC was only presided over by its senior Justice instead of the Chief Justice or the Deputy Chief Justice because the latter offices had become vacant since their previous occupants, with five other Justices, had left the bench at the end of their eight-year term on 31 October 2024. When it delivered the 2025 Judgment, the TCC was staffed with only eight Justices, although the Constitution provides that it ‘shall’ have 15 members.
What has made the 2025 Judgment even more anomalous is that the TCC deviated from the convention and issued the Judgment in a tribunal of five Justices (including the senior Justice acting as the Chief Justice) instead of a full court, which would be eight. The five-Justice court was essentially further split into two camps, with one concurring Justice (the Concurring Solo) questioning the reasoning of the majority opinion (ie, the Opinion of the Court) – the Majority Quartet – on the issue of quoracy required for the TCC, while another concurring signed by three Justices of the Majority Quartet endorsed and expanded on the Opinion of the Court. If this is still not enough to convince you, the reader, of the anomalousness of the 2025 Judgment, consider the extramural statement by the three absent Justices (the Absent Trio) issued on the same day as the 2025 Judgment was promulgated: the 2025 Judgment was null and void as it was not delivered by a court of law but instead resulted from an extralegal body of five runaway Justices.
The uncharacteristic 2025 Judgement has since surprised and divided the legal community in Taiwan. On the day after its promulgation, the Republic of China Constitutional Law Society issued a stinging statement, denouncing the legality of the 2025 Judgment. To rebut, more than 1,000 academics and lawyers have signed a petition in support of the TCC. Is the 2025 Judgment just a storm in the teacup among eight independently-minded jurists? Or, as the divided professional opinion on this seemingly bootstrapping judgment suggests, is it symptomatic of a constitutional skyfall?
In this two-part blog, I take on the watershed character of the 2025 Judgment and its implications to the state of the constitutional order in Taiwan Despite its evocativeness of the TCC’s past bootstrapping jurisprudence that helped turn it into a trustworthy guardian of constitutional democracy from a convenient problem-solver under the wings of the party-state, the 2025 Judgment’s bootstrapping effect and authority still hangs in balance. Judging by its bringing the TCC’s year-long hiatus to an end, the 2025 Judgment is indeed bootstrapping on its face. Yet, as the remaining eight Justices – a result of the seats of seven Justices who stepped down at the end of their eight-year term being left unfilled – failed to steer clear of hardball tactics as has prevailed in Taiwan’s raucous constitutional politics, the TCC’s disunion only gave expression to the limits of a countermajoritarian court trying to navigate the tumultuous politics of divided government and movement party struggle. As will be explained, both the Majority Quartet and the Absent Trio relied on formalist deduction in making their cases and thus failed to find a common ground – only to see the TCC resurrect itself on the Schmittian language of exception and necessity (‘極端例外且不得已情況’) (The 2025 Judgment para 52) amid heightened political division in the general constitutional landscape. Reaching the limits of legality, the TCC is inevitably questioned in legitimacy terms while struggling to assert authority in a brewing constitutional crisis. After the 2025 Judgment, the TCC and Taiwan’s constitutional order in general are entering uncharted waters.
In the first instalment of this blog, I map out the way to the 2025 Judgment in three stages to set the scene for the TCC’s unconventional 2025 Judgment and Taiwan’s sleepwalking towards a constitutional crisis, which will be the focus of the second instalment.
Stage One: The Lead-Up to the 2025 CCPA Amendment
As I (with Hui-Wen Chen) have reported elsewhere in early 2025, the rump status the TCC found itself in was a direct result of the failure of the political branch to fill the vacancies in time when the term of seven Justices ended on 31 October 2024. Under the pre-revised CCPA, a rump TCC remained able to function if need be (article 30; see also here). It was only brought to a halt as a result of the new rules of the 2025 CCPA Amendment with respect to the quorum and voting thresholds. Before proceeding to its content, it should be noted that several private member bills regarding the 2025 CCPA Amendment had already been introduced by the opposition coalition – which controlled the majority of the seats in the Legislative Yuan (the parliament, hereinafter LY) following general elections in December 2023 – in July and September 2024. The LY passed the finalized Bill on 20 December 2024.
This timing was crucial. On 20 September, the TCC delivered the Death Penalty Case, which rendered the imposition of death penalty extremely difficult, if not impossible, despite the broad support of death penalty in Taiwan (see also here). The private member bill that was eventually adopted by the LY was introduced on 25 September – obviously a directed populist response to the TCC’s countermajoritarian decision on death penalty. Also, when that bill was finally pushed through parliamentary procedures on 20 December, the TCC had delivered a blow to the parliamentary majority, striking down the opposition’s signature legislation that provided the LY with expansive investigative powers vis-à-vis the executive department (see also here). When the TCC issued the Limits of the Legislative Power Case on 25 October, seven of its 15 members were set to sept down in a week. It came as no surprise that the opposition-controlled LY rejected all the seven Justice nominees on 24 December in the wake of its crushing defeat before the TCC.
All in all, the LY’s rejection of all the Justice nominees that reduced the TCC to a rump court and the LY’s adoption of the 2025 CCPA Amendment Bill in December 2024 was a parliamentary retaliation against a countermajoritarian court.
Stage Two: The 2025 CCPA Amendment
The 2025 CCPA Amendment was not duly enacted until the President promulgated it on 23 January 2025. The gap between its passage and enactment is revealing of the controversial character of the Amendment. The most significant change concerned the general rules governing the quorum and voting thresholds for ‘Judgments’ (decisions on the merits). Under the original, single-paragraph article 30 of the CCPA, the presence of two-thirds of all incumbent Justices constituted a quorum for judicial deliberation, while rendering a Judgment required a majority vote of all incumbents, unless otherwise provided. Restructuring it as paragraph 1 without directly changing the content, the Amendment added five new paragraphs to article 30. Under the new article 30, paragraph 2, notwithstanding the general rule set out in paragraph 1, it was provided that at least 10 Justices must be present for Judgment proceedings. This paragraph further required that declaring an impugned state act unconstitutional called for the consent of nine Justices. Read together with paragraph 1, the new paragraph 2 allowed the TCC to uphold an impugned state act by Judgment with a majority of all incumbent Justices subject to the 10-Justice quorum.
The Amendment’s asymmetrical approach to voting thresholds for TCC Judgments was also reflected in paragraph 3, providing that if the TCC lacked the 10-Justice quorum required for Judgments, it could nevertheless dismiss a petition by Order with the consent of a majority of incumbent Justices. Paragraph 4 further extended the stringent rule of paragraph 2 to proceedings for preliminary injunction, presidential and vice-presidential impeachment, and dissolution of unconstitutional political parties. The Amendment also addressed the quorum and voting thresholds in cases involving judicial disqualification. Paragraph 5 provided that where more than seven Justices were disqualified, a special rule would apply, notwithstanding paragraph 2: the TCC was deemed quorate for Judgment proceedings with all remaining incumbent Justices present, and it could render a Judgment or issue an Order with the consent of a three-fourths majority. To circumscribe this departure from the stringent rule in paragraph 2, paragraph 6 limited paragraph 5’s application to cases where not more than eight Justices were disqualified. Read together, paragraphs 5 and 6 suggested that the loosening of the 10-Justice quorum applied only when exactly seven Justices remained after the disqualification of eight.
Under the 2025 CCPA Amendment, the rump TCC of eight Justices lacked quorum either under the general requirement of paragraph 2 or the special rule of paragraph 5. As a result, the TCC was effectively suspended under the retaliatory 2025 CCPA Amendment.
Stage Three: The Lead-Up to the 2025 Judgment
The parliamentarians of the ruling party (Democratic Progressive Party, DPP) soon petitioned the TCC to strike down the 2025 CCPA Amendment with a request for granting a preliminary injunction on it even before the Amendment was duly enacted. Notably, despite the stringent stipulations on the quorum and voting thresholds under the new article 30 of the 2025 Amendment, the CCPA’s provisions for decisions on the admissibility of constitutional petitions were left untouched. According to article 32, the TCC may accept a petition by a simple majority in a quorate court of at least two-thirds of all incumbent Justices. Under this provision, the TCC, left with eight Justices, could take up petitions with the consent of four Justices in a court of six before carrying out the Judgment proceedings. Following a hearing short of a formal oral argument on 12 May 2025, the TCC granted admission to the petition on the 2025 CCPA Amendment two days later. At that time, President Lai Ching-te of DPP had nominated another seven candidates for the TCC vacancies in March, pending the consent of the opposition-controlled LY.
In the meantime, a mass recall movement – a citizen initiative supported by the ruling DPP – targeting opposition parliamentarians was already underway, deepening political division. Against this backdrop, the LY rejected all the seven nominees again on 25 July, just on the eve of when the first recall ballots were to be cast. President Lai’s hope to change the parliamentary majority by recalling dozens of opposition parliamentarians was eventually dashed as none of the 32 opposition parliamentarians placed on the recall ballot were unseated following the votes on 26 July and 23 August.
As the partisan rivalry intensified, concerns grew over the TCC continuing to dismiss or grant admission to petitions without delivering any Judgment. In two separate opinions (one concurring and one dissenting) attached to the TCC’s dismissal of two petitions in July and September, four Justices in total – later the Majority Quartet in the 2025 Judgment – expressed the view that the 2025 CCPA Amendment did not bind the TCC as its constitutionality was at issue. In September 2025, it was leaked that the TCC could not review the impugned 2025 CCPA Amendment only because it failed to meet the quorum even under the pre-revised article 30 of the CCPA, two-thirds of all incumbent (eight) Justices. At least three Justices must have boycotted the Judgment proceedings concerning the review of the 2025 CCPA Amendment. The identity of the three boycotting Justices – the Absent Trio in the 2025 Judgment – finally came to light on 8 October. In a rare Justices-penned op-ed, the three Justices contended that the TCC could not aggrandize itself by making an end-run around the 10-Justice quorum for Judgment proceedings as the 2025 CCPA Amendment required even if the latter was the object of constitutional review.
As the TCC’s disunion went public and the continuing escalation of the conflict between the executive power and the opposition-controlled parliament, the President-appointed Prime Minister made an unprecedent move on 15 December. Citing the TCC’s crippled condition, he refused to ‘countersign’ a controversial and allegedly unconstitutional bill passed by the LY on grounds of the executive’s constitutional self-help and thus effectively vetoed the legislative bill, notwithstanding the relevant constitutional provisions (here, here, and here). In sum, the lead-up to the 2025 Judgment was fraught with intense constitutional conflicts, bringing Taiwan’s constitutional order to the brink of crisis.
To be continued.
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 I, Int’l J. Const. L. Blog, Jan. 20, 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-i/