Introduction
Taiwan's Constitutional Court (the Court) issued Judicial Yuan Interpretation (J.Y. Interpretation) No. 499 declaring unconstitutional the constitutional amendments passed by the National Assembly on the ground that these amendments infringed the constitutionally embedded basic structure on substantive and procedural grounds.
With this ruling, the Court was hailed as a brave and active court that dared to challenge public sovereignty in constitutional revisions.[505]Judicial review has become a popular mechanism in modern constitutional democracies, but judicial checks on the constitutionality of constitutional amendments have been rare and exceptional in practice. Upon ruling constitutional amendments unconstitutional, the courts, even individual justices, might be hailed as heroic and the constitutional doctrines used to support the decision, such as basic structure doctrine, eternal clauses, or inherent limitations to sovereign constitutional revision powers, could well be over-dramatized without sufficient contextual rationalization.[506] By looking into ad hoc judicial cases in this way, this leading case approach often fails to account for the spectrum and dynamics of constitutional amendment mechanisms and processes on the one hand and public perceptions of constitutional amendments on the other. Worse, single case doctrinal analysis often fails to recognize public ambivalence towards constitutional change and the spectrum of constitutional amendment mechanisms.
This chapter looks into Taiwan's J.Y. Interpretation No. 499 with contextual underpinnings, including atypical transitional arrangements of elections, presidential electoral imperatives, party politics, and negotiated constitutional engineering. Other earlier judicial settlements that set the foundation of procedural rationality in exercising sovereign power of constitutional amendment are also reviewed to better present a holistic picture of judicial review, against the backdrop of public oversight, on constitutional amendment. This chapter argues that the alleged global diffusion of the idea of unconstitutional constitutional amendment is in fact a continuous struggle of public oversight on constitutional amendment, in which not only the judiciary but the general public plays an integral role too.
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