—Ming-Sung Kuo, Reader in Law at the University of Warwick School of Law
[Editor’s Note: This is one of our ICONnect columns. For more information on our 2026 columnists, see here.]
Breaking Up the Court: The Birth of Tragedy
In a two-part pre-columnist blogpost in this forum early this year (see here and here), I documented constitutional hardballing between the eight incumbent Justices of the Taiwan Constitutional Court (TCC) in the landmark and only judgment – a decision on the merits, as opposed to an order – it rendered in 2025: The 2025 Judgment. In essence, in The 2025 Judgment the TCC struck down the parliament’s retaliatory court-curbing legislation enacted in January 2025,[1] which had since de facto suspended its function in constitutional review for almost a year with increased quorum and passing thresholds. Hailed by many local commentators as the TCC’s victory in preserving the constitutional order in the face of a parliament running amok, the judgment turned out to be a Greek-style tragedy. Having been reduced to a rump court after seven of its fifteen members left the bench at the end of their eight-year term on 31 October 2024, the TCC noticeably only rendered The 2025 Judgment as a court of five Justices instead of eight. What rendered this hailed judicial victory Pyrrhic is not the TCC’s failure to deliver a unanimous Opinion of the Court in its landmark decision amid Taiwan’s deepening political division. The judicial tragedy of The 2025 Judgment lies rather in the fact that the three absent Justices – who happened to constitute an all-female trio – played constitutional hardball with those taking part in the decision: absenting themselves from the proceedings in a gesture of boycott, the Absent Trio extramurally accused their four brethren (the Majority Quartet) and another sister (the Concurring Solo) of constituting themselves an unlawful tribunal of five notwithstanding the statutory quorum, and therefore condemned The 2025 Judgement as null and void in an ersatz dissenting opinion. As the Concurring Solo, Justice Tsai-Chen TSAI suggested, it strains credulity to agree to the Majority Quartet’s deeming the Absent Trio disqualified just for the purpose of quoracy. Reeking of constitutional hardballing, The 2025 Judgment was anything but successful judicial bootstrapping.
Enough has been said about The 2025 Judgment itself. As in every good Greek tragedy, the judicial drama of Taiwan’s apex court started by The 2025 Judgment did not stop at the vocal exchange of the Majority Quartet, the Absent Trio, and the Concurring Solo in that decision. Rather, in a truly tragic sense, the TCC has replayed the three-party judicial game time and again as if there is no end to its own drama insomuch as it has been struggling to hold court since the rendering of The 2025 Judgment last December.
Hanging in the Balance: Court Life in Days of Tragedy
As of this blogging, the TCC has rendered four judgments in 2026, apart from numerous cases dismissed on grounds of admissibility, and has seemed to act as an activist court. In all four judgments, the TCC declared the relevant state acts in question (including two statutes, one selected judicial precedent, and one court ruling) unconstitutional, with varying remedies, and thereby redeemed the petitioners’ violated constitutional rights. Notably, none of these judgments have aroused much public interest due to the legal technical nature of the issues concerned. They are nonetheless conspicuous for other reasons. All of them were rendered by a court of five Justices with the Absent Trio of The 2025 Judgment continuing to stay away from what they saw as an ersatz tribunal. As I noted in January, the Absent Trio did not always make their voice heard. They only voiced their condemnation of the TCC of five Justices in cases where they disagreed with their siblings in law over questions of admissibility or constitutionality, and of course, they only did so extramurally through ersatz dissenting opinions. In the meantime, the five-Justice TCC found it necessary to explain its own quoracy every time it rendered a judgment, suggesting a new structural style in composing the Opinion of the Court after The 2025 Judgment.
The banality of the TCC’s jurisprudence in 2026 comes as no surprise. With its internal division fully exposed before the public and its own lawfulness questioned by three dissident Justices, the TCC of five has no choice but to tread gingerly when it re-enters Taiwan’s beastly constitutional arena. Facing the extended all-in constitutional confrontation between the executive power and the opposition-controlled legislature, the diminished TCC – with only one third of its fifteen seats effectively filled in rendering a judgment – just does not have much political capital to spend on politically charged cases that have crystalized in inter-branch conflicts. It is better served by putting aside its remaining capital for the protection of constitutional rights when it waits out the current political vortex, before having its vacancies filled and regaining its institutional strength. Thus, taking up mundane issues in a minimalist style seems to be the pragmatic way forward as it would allow the functionally incumbent Justices to keep the court running in balancing the TCC’s institutional reality and constitutional mandate. So far, so good.
Breaking Ranks: The Tragic Sequel
Yet, in the invalidation of an already defunct judicial precedent, the five-Justice TCC has just seen its delicate balance collapse in its fourth judgment this year, promulgated on 8 May – call it the 8 May 2026 Judgment. The case itselfis nothing but a trifle. In question was, inter alia, a 1940 judicial precedent of the Supreme Court, which was established when it was still seated in Nanjing, China. Notably, the provision of the Code of Criminal Procedure, of which the 1940 judicial precedent was a rendering, has already been amended in 2021. Thus, the TCC only intervened to allow the petitioner to relitigate his convictions, which applied, inter alia, the 1940 judicial precedent when they finally became unappealable in 2014.
Informed observers of Taiwan’s constitutional law will be hard-pressed to see any more banal and technical constitutional petition than this one. Taking up such a case, the TCC seems to continue with its self-preserving minimalist approach to constitutional review after The 2025 Judgment. The trouble is that even the trifle cannot make dissensus disappear. The five-Justice TCC only rendered the 8 May 2026 Judgment at a four-to-one majority. What makes this trifle judgment so damaging to the already battered TCC, however, is not Justice Tsai-Chen TSAI, the aforementioned Concurring Solo, breaking ranks with her brethren. Rather, her accusatory dissent expressly questions the legitimacy (‘正當性’ or ‘實質正當性’) of the current five-Justice TCC whenever it renders a judgment short of unanimity, evoking the Absent Trio’s denunciation of the five-Justice TCC’s competence in its rendering of The 2025 Judgment.
Long story short, Justice Tsai-Chen TSAI relitigated her case made in her Concurring Solo in The 2025 Judgment that the Absent Trio could not be deemed functionally disqualified just for the purpose of quoracy as the Majority Quartet held. Instead, as a function of equitable balancing, the pre-2025 statutory quorum – two-thirds of all the incumbent (eight) Justices, ie, six for the current TCC – would be lowered under the TCC’s constitution-derived procedural autonomy. This would allow five Justices, the majority of incumbent Justices, to lawfully constitute themselves a court of law in the face of the Absent Trio’s persistent boycott and the political branches’ failure to fill the seven vacancies. In this twist, paralleling the Absent Trio, Justice Tsai-Chen TSAI effectively challenged the foundation of The 2025 Judgment and the ensuing four judgments in 2026 as all of them rested on the legality of the TCC itself, which relied on the analogy of the Absent Trio’s boycott to judicial disqualification.
Moreover, rejecting the Majority Quartet’s boycott-disqualification analogy that underpinned its functionalist construction of ‘incumbent Justices’, Justice Tsai-Chen TSAI contended that the pre-2025 statutory passing threshold for judgment – more than half of all incumbent Justices – remain to be five, despite the Absent Trio’s walkout. Again, this was a result of her equitable balancing under which the pre-2025 statutory passing threshold for judgment was deemed unsusceptible to functionalist construction, due to its implications to decisions on the constitutionality of state acts before the TCC. From this reasoning it follows that the 8 May 2026 Judgment was not legally rendered as it failed to pass the threshold of five votes even if four of the five Justices participating in the proceedings concurred. Implied in her reasoning is that any TCC judgment short of unanimity issued in the future – until the disappearance of its current sorrowful condition – would be a result of the violation of the statutory passing threshold constitutive of the rendering of judgement and thus amount to nullity in the eyes of the law.
With Justice Tsai-Chen TSAI breaking ranks with the all-male Majority Quartet with her condemnatory dissent, the TCC that rendered the 8 May 2026 Judgment is virtually reduced to a tribunal of four. Short of the majority of its eight members, the TCC is even more exposed in asserting authority through judgment. Standing accused again of failing in legality and legitimacy by the sistren within and without the Court as a result of the trifle 8 May 2026 Judgment, the TCC has added a sequel to the tragedy started by its most recent landmark, The 2025 Judgment.
Redeeming Juris-Prudence: The Landscape beyond the Sorrowful TCC
I am not sure whether Justice Tsai-Chen TSAI’s renewed objection to the Majority Quartet’s functionalist construction of ‘incumbent Justices’ was submitted to allow herself to emerge as the de facto gatekeeper of the TCC’s conduct of constitutional review. The present space also does not allow me to properly assess to what extent Justice Tsai-Chen TSAI’s equitable-balancing approach fared better in persuasion than the ill-conceived reasoning of The 2025 Judgment. Yet one thing is clear. In its current condition, the diminished TCC can hardly sustain the authority of its judgment on formal legality. Nor can it afford to allow itself to further dwindle to an all-male court of four. Holding together the bare majority of five becomes essential to the TCC’s pragmatist approach to constitutional review on days of tragedy. To this end, the TCC and its leadership must be wise in determining what cases to be brought up for judgment. Scientific knowledge of law is limited in this regard. There is no formula or standard operation procedure for such judicial decisions. The split between Justice Tsai-Chen TSAI and her brethren in the 8 May 2026 Judgment resulted from the conflation of the prudence of judicial minimalism and a formulaic court strategy. Considering in formulaic terms the prudence-guided suggestion, that the banality of a case constitutes a propitious condition for an exposed apex court to strike, Justices may have seen a case concerning a defunct judicial precedent as a natural candidate for themselves to make their continuing conduct of constitutional review visible to the public. Unfortunately, such juris-imprudence has only made the TCC even more exposed in the public eye.
Instead of scientific knowledge of law or some formulaic guidance, it takes lawyer’s wisdom, which jurisprudence at its original core connotes, to make the pragmatic approach a success. While the sorrow of Taiwan’s diminished constitutional court results from its attempted judicial bootstrapping in response to a retaliatory legislation triggered by local politics, more and more apex courts in the world are faced with statutory court-curbing measures. Going beyond the documented jurisprudence in case reports, relearning and redeeming the meaning of juris-prudence helps to illuminate what constitutes a good judgment, what a strong court means, and what is required of a wise judge in today’s bumpy global constitutional landscape.
Suggested citation: Ming-Sung Kuo, Standing Accused by (Some) Justices Themselves, Again: The Juris-(Im)Prudence in Taiwan’s Diminished Constitutional Court, Int’l J. Const. L. Blog, May 13, 2026 at: http://www.iconnectblog.com/standing-accused-by-some-justices-themselves-the-juris-imprudence-in-taiwans-diminished-constitutional-court/
[1] An erratum is due. My previous preference to the TCC’s 2025 Judgment declaring the impugned legislation ‘null and void’ was a misstatement. The 2025 Judgment only struck down the statute with prospective effect.