—Ming-Sung Kuo, Associate Professor of Law, University of Warwick & Hui-Wen Chen, Research Assistant, University of Warwick
Introduction: Opinions of the Court Disowned
Taiwan’s Constitutional Review 3.0 has seen its first 100 days since the Constitutional Court Procedure Act (CCPA) came into effect on January 4, 2022. Although judicial time does not fly, the Taiwan Constitutional Court (TCC) has wasted no time in making the CCPA’s impact fresh and real. As of April 28, the TCC issued four Judgements and two merits-related Orders as well as over 180 Orders on admissibility and other procedural matters under the new CCPA. Yet, from out of the four Judgements a big story has emerged about the identity and authenticity of constitutional review: in whose name does the TCC speak as the constitution’s oracle? It is a strange story about the TCC’s Judgments Nos. 3 and 4.
Judgment No. 3, rendered on March 25, concerned a technical procedural rule on the criminal court proceedings, whereas Judgment No. 4, delivered a week later, addressed an issue concerning indigenous rights. Despite difference in constitutional significance, they share one character: the (nominally) authoring Justices of the opinions of the court (Reasoning) in these two Judgments issued concurring opinions. In a word, the opinions of the court for the TCC’s Judgments Nos. 3 and 4 were disowned by their authors. When the authoring Justices identify themselves with their concurring opinions instead of the opinions of the court, then who is talking in the Reasoning? Does this story of disownment suggest the inauthenticity of the TCC’s Reasoning? What does this tell us about Taiwan’s Constitutional Review 3.0?
To make sense of the strange story of disownment in Taiwan’s new experiment on constitutional review, we suggest that at its core is a tragic exhibition of the reform suffering from the discrepancy between the law on the books and the old institutional habits that die hard. The CCPA’s good will is the beginning of the story.
Why the Institutional Voice Becomes Personal
As we noted at the CCPA’s inauguration, transparency and efficiency are two of the guiding values in Taiwan’s latest revamp of constitutional review. By replacing the continental tradition of impersonal judicial opinions with the Anglo-American style of “personalized” judgments, the TCC is expected to live up to both efficiency and transparency. By entrusting the opinion of the court to a single Justice, the CCPA expects the TCC to gain efficiency as the Reasoning would be a personal judgment that persuades the majority of the Justices rather than a laborious teamwork. With the identity of the Justice entrusted with the Reasoning disclosed and the names of the majority and the opposite published, the TCC’s transparency would increase. So said the CCPA’s advocates.
Yet, the above picture visualized by the CCPA’s designers does not reflect the TCC’s institutional practice. The majority required of an opinion of the court (Reasoning) only forms through debate and deliberation in the Justices’ conference. As a result, the opinion written by the entrusted Justice is effectively reduced to a draft subject to comment, suggestion, and even revision by her colleagues. The end result of judicial deliberation turns out to be no less a function of collective effort than the pre-CCPA Interpretations the TCC rendered on the model of the German Federal Constitutional Court (GFCC). Moreover, in extreme cases, the gist of the opinion prepared by the Justice entrusted with the Reasoning can be totally displaced. In such cases, the authoring Justice named in the Judgment is more of the mouthpiece of a corporate body than the authentic author of the opinion of the court. The authoring justices of Judgments Nos. 3 and 4 were unlucky to find themselves in such extreme cases. Thus, they consciously distanced themselves from the Reasoning by issuing concurring opinions that either contradict or supplant the opinions of the court.
Apparently, the authoring Justices’ emphasis on personal responsibility through disownment exposes the untrue identity of the TCC’s Reasoning in Judgments Nos. 3 and 4, calling the authenticity of Judgments into question. Can’t this judicial tragicomedy be avoided? If the two authoring Justices were not sincere about their Reasoning in Judgments Nos. 3 and 4, why didn’t any of their brethren or sistren step up to the plate and write the opinion of the court in their place?
Ponos, Not Hercules: The Oracle’s Self-Identity Unveiled
As suggested above, the CCPA’s “Anglo-American turn” on the authorship of the TCC’s Judgments is far from a total break with its old role model, the GFCC. Instead of adopting the practice of the Supreme Court of the United States (SCOTUS) that the Chief Justice has the privilege to write the opinion of the court or to assign an Associate Justice instead, the CCPA keeps the GFCC-inspired arrangement of reporting judge in place. The reporting Justice not only prepares the analysis of the case under review but also authors and submits the draft Holding and the attendant Reasoning to the Justices’ conference. Unless the reporting Justice finds herself on the minority, she is entrusted with authoring the opinion of the court (Reasoning) based on the deliberation of the Justices’ conference.
More importantly, the decision as to which Justice is entrusted with reporting a case in the TCC is generally beyond the Chief Justice’s prerogative. Yet, as a departure from the GFCC’s internal procedures, the choice of the reporting Justice in the TCC does not rest on the expertise-based predetermined competence of individual Justices. It is instead determined by the TCC’s internal protocol governing the caseload allocation under the guidance of egalitarianism. Thus, the Justice entrusted with authoring the Reasoning of a Judgment is merely a result of the court routine, not a function of judicial leadership by expertise or persuasion.
Seen in this light, the two authoring Justices mouthed the Reasoning of Judgments Nos. 3 and 4 in the name of the TCC just because they were expected to pull their weight. Had they not done it, their fellow Justices would have laboured more. It is then understandable why the unnamed Justices who swayed the Reasoning of those two Judgements did not put themselves forward. As they are labouring on the cases allocated to them, it would be a big ask for them to take up the burdensome opinion-writing beyond their share. Being the sincere substitute author of the TCC’s Reasoning would bring them neither glory nor fame, only labour. Unlike the Hercules in the Dworkinian empire that gives expression to the super-human judge, the Justices in the TCC under the heavy caseload find themselves in the image of Ponos – being condemned to ceaseless hard labour and toil.
Two Models at a Time: Transparency Accomplished at the Expense of Authority
The strange story of disownment about the TCC’s Judgments Nos. 3 and 4 is not just a question of whether the constitution’s guardians in Taiwan are human and all too human. At stake is the authority of constitutional review. When the Justice who the public believe to be the author of the opinion of the court disowns the Reasoning of the TCC’s Judgment by writing her own concurring opinion, how can the public be expected to take the TCC’s Reasoning seriously? As the strange story of disownment gives the lie to the authenticity of the Reasoning of Judgments No. 3 and 4, the TCC’s authority is called into doubt.
Granted, these two extreme cases simply continue with the TCC’s pre-CCPA practice of constitutional interpretation: the reporting Justice simply transcribed and converted the conclusion of judicial deliberation into the Reasoning. Yet, in those good old days, the reporting Justices stayed anonymous. In this way, the TCC spoke in each Interpretation as if its Reasoning, just like the Holding, came out of the Justices’ collective wisdom. The TCC was held responsible for each Interpretation only as an institution.
In contrast, in the quest for full transparency and individual responsibility, the CCPA is mostly designed on the SCOTUS model, despite the GFCC’s continuing influence under which the Reasoning is the result of judicial deliberation rather than a personal opinion speaking for the majority. As Judgements Nos. 3 and 4 show, individual Justices sincerely assumed responsibility by issuing their personal opinions alongside the opinions of the court (Reasoning) nominally attributed to them, only at the expense of the TCC’s institutional authority. The CCPA’s good will to model the TCC after both the GFCC and the SCOTUS intensifies the discrepancy between the SCOTUS-oriented legislative vision of constitutional review and the TCC’s GFCC-inspired institutional habits. Instead of thriving on the best of both worlds, the TCC’s Ponos-like Justices, who take their dues and individual responsibility seriously, find the authenticity of their Judgments questioned. Ironically, the TCC’s institutional authority suffers when two institutional virtues – transparency and deliberation – are joined together by the CCPA. The TCC’s strange story of disownment unfolds as an early tragic play of the reform drama about Taiwan’s constitutional review 3.0.
Suggested Citation: Ming-Sung Kuo & Hui-Wen Chen, “Look Who’s Talking!” The Strange Story of Disownment in Taiwan’s New Experiment on Constitutional Review, Int’l J. Const. L. Blog, Apr. 28, 2022, at: http://www.iconnectblog.com/2022/04/look-whos-talking-the-strange-story-of-disownment-in-taiwans-new-experiment-on-constitutional-review
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