Judicial reasoning and contextual imperatives
The 1946 ROC Constitution (the Constitution) set forth the National Assembly as the monopolistic institution to revise the constitution.[507] Since the launch of democratic reform, the National Assembly has completed seven rounds of constitutional amendments in 1991, 1992, 1994, 1997, 1999, 2000, and 2005.[508] In the 1999 amendment, the fifth one, the National Assembly concluded three main schemes: (1) parliamentary reform on the structure of the National Assembly and Legislative Yuan; (2) elimination of temporary clauses on provincial election; (3) incorporation of basic national policies.[509] Among these revisions, proportionalappointment and term-extension clauses were highly controversial, considered as a political and constitutional surprise to the new democracy.[510] Unlike previous rounds of constitutional revisions, this revision provoked public outcry amidst the upcoming presidential election.
Not surprisingly, agents of major political parties appealed to the Court, arguing that these revisions were unconstitutional.It was absolutely within the Court's discretion to avoid the tight rope by resorting to the political question doctrine while confronting the justiciability of constitutional amendments.[511] The Court, nevertheless, took a hard look at the
Beyond unconstitutionality 155 dynamics of constitutional revision without acknowledging that this revision was in fact undertaken as a part of the ongoing incremental constitutional engineering for better democratic representation within a transforming Taiwan.
8.2.1 Judicial reasoning on unconstitutionality
The court reviewed the case from procedural and substantive angles, both leading to the conclusion of unconstitutionality. On reviewing the procedural flaws in the reading sessions, the Court made it clear that the amendment process contradicted certain basic principles of the Constitution, which rendered the entire revision void.
In addition, using the theory of constitutional unamendability, the Court went on to strike down both proportional-appointment and term-extension clauses, based on the violation of principles concerning popular sovereignty and democratic republic that are the integral part of the constitutional order.8.2.1.1 Procedural grounds
In its reasoning, the Court declared that the 1999 constitutional revision was inconsistent with certain fundamental principles that sustain the validity of constitutional amendments. In the Court's view, an amendment process requires openness and transparency as the fundamental principles to facilitate democratic deliberation and rational communication. Moreover, a constitutional amendment should be deemed void if there is a “manifest and gross flaw” in the amendment process.[512]
Yet, as the Court observed, the procedural requirements were not fulfilled by the National Assembly during the reading sessions. Among the various procedural flaws, the use of secret ballots was considered as manifest and gross, and had already undermined the legitimacy and validity of the amendment. In the second and third reading sessions, Su Nan-Cheng, the Speaker of National Assembly, denied the request for an open ballot pursuant to Article 38 of the Rules of Procedure and the application of a secret ballot was then approved by the majority.[513] The Court condemned the application of the secret ballot in the amendment process as a clear contravention of the principle of openness and transparency.[514] Based on these procedural grounds, the Court struck down the disputed revision in its entirety, even though Articles 9 and 10 of the Additional Articles were not challenged at all.
8.2.1.2 Substantive grounds
The Court further examined substantive matters within the disputed constitutional revisions, holding that some contradicted constitutional provisions that are “integral to the essential nature of the Constitution.”[515] For the Court, these essential provisions cannot be undermined even through constitutional amendment as they would otherwise destroy the constitutional order in its entirety.
Despite the fact that the Constitution does not explicitly include any provision within its essential nature, the Court still made its own list of unamendable provisions, including Article 1 (the principle of democratic republic), Article 2 (the principle of popular sovereignty), Chapter II (the protection of constitutional rights), and those providing for the separation of powers and the principle of checks and balances.[516] The rationale behind the concept of unamendability is arguably inspired by constitutional theory from Germany that distinguishes between the essential and non-essential part of the Constitution.[517]By applying the theory, the Court struck down both proportional-appointment and term-extension clauses based on their contradictions with the essential provisions of the Constitution. The National Assembly was granted tremendous constitutional powers including the power to amend the constitution, which by nature should be vested with the elected representatives. In this sense, the Court required that the members of National Assembly must be directly elected by the people, but representatives elected pursuant to the proportional-appointment clause were merely “appointed by individual political parties, rather than representatives of the people.”[518] Therefore, the Grand Justice found this clause incompatible with the principle of democratic republic under Article 1 of the Constitution.
Similarly, the Court did not struggle too much to reach the conclusion that the term-extension clause was also unconstitutional. Based on its previous decisions in J.Y. Interpretation Nos. 31 and 261, the Court held that regular elections must take place to reflect the will of the people unless an extraordinary circumstance exists to justify preclusion. The Court took the position that it is not constitutionally allowed to change the term limit of the National Assembly alone while leaving its structural and functional reform for future political resolution.
By denying the necessity of extending the fixed term of the National Assembly, the Court considered such an extension as a betrayal of the people, which should be deemed inconsistent with the principle of popular sovereignty.8.2.2 Contextual imperatives for judicial activism
The holding and reasoning in the ruling were ironclad and harsh, but there could well be contextual imperatives for the Court to do so. By looking into the context, judicial decisions can be conceived as reflecting the political tide, moving the Court towards politicization. Three contextual imperatives provided the impetus for the determinate ruling. They are: (1) incremental constitutional reform, (2) the status of the National Assembly, and (3) the presidential election.
8.2.2.1 Incremental constitutional reform since the 1990s
During the time of democratic transition, Taiwan underwent seven rounds of constitutional revision from 1991 to 2005.[519] This incrementalist model of constitutional reform was actually a compromise through the negotiations of political powers, rather than a composition of mere incidental events. Fierce debates occurred on the choice between “incrementally amending the constitution” and “making a new constitution” in reflecting the changing landscape of constitutional order. However, in order to preserve the symbolic “Fatung” of the ROC Constitution, the latter proposal was strongly opposed by the then-ruling Kuomintang (KMT) government.[520] The main scheme of Taiwan's incremental constitutional reforms lay in the reconstruction of popular representation to strengthen the connection between the central government and the people themselves. This constitutional project was eventually completed with the abolishment of the National Assembly and the desirable installation of a public referendum in the seventh constitutional revision of 2005.[521]
Similar to the past four rounds of constitutional revision, the fifth in 1999 was still the product of partisan negotiations for incremental constitutional engineering.
After the fourth constitutional revision passed in 1997, the National Assembly became the next target of reform. Proposals for reorganizing the National Assembly varied from its entire abolishment to structural reform by transforming it into a bicameral parliament.[522] Consensus was finally achieved in the fifth constitutional revision to approve the proposal of unicameralism, which included both proportional-appointment and term-extension clauses aiming not only to reflect the outcome of political negotiations but to reduce the cost of holding national elections.[523]8.2.2.2 National Assembly as a sunset agency
Looking back to Taiwan's constitutional history, the National Assembly was established, under Sun Yat-Sen's blueprint, as a significant body to represent the will of the people and reflect popular sovereignty. Article 27 of the Constitution granted the National Assembly the power to elect and recall the president and the vice president, as well as to amend the Constitution. Yet, during the time of democratization, the National Assembly was considered the “sunset agency.” For one thing, the constitutional image of the National Assembly was based on the illusion of Mainland China as the ruling territory. Moreover, under the authoritarian regime governed by the Temporary Provisions, representatives of the National Assembly had not been reelected for over 40 years. It is therefore questionable whether the structure and function of the National Assembly could still satisfy the people's demand for democratic transformations.
As the monopolistic institution to approve constitutional amendments, the National Assembly abused its power for “rent-seeking” tradeoffs for its own political interests.[524] According to the Constitution, constitutional amendments could be proposed by the National Assembly or Legislative Yuan, but the Assembly was the only branch to hold the power of approving those proposed amendments. Yet in practice, almost every constitutional revision, including those to the Temporary Provisions, was proposed and approved by the National Assembly alone.[525] After the second and third constitutional revision, the Assembly not only made the structural reform a permanent institution that would be involved in more political affairs, but also expanded its own powers, inter alia, to confirm the appointments of the Judicial, Examination, and Control Yuan.[526]
In addition, the creation of the National Assembly and Legislative Yuan generated conflicts over the nature and scope of power sharing between the two political branches.
To elaborate, unlike the bicameral system in some countries, it is argued that such division tears apart the power that has been conventionally perceived to be in the hands of the legislature. Even worse, competition for representing the supreme legislative body took place between the National Assembly and Legislative Yuan, especially when they were both recognized as “parliaments” by the Court in a previous decision, J.Y. Interpretation No. 76.[527] In this context, demands for parliamentary reform became increasingly urgent to clarify the relationship between the National Assembly and the Legislative Yuan.8.2.2.3 Presidential election and constitutional politics
Before the fifth constitutional revision in 1999, four rounds of constitutional reforms had been completed. One of the main schemes of these reforms focused on the institutional design of presidential powers and presidential elections. The first direct presidential election was held in 1996, making Taiwan a success story, marching towards a more democratic state. Moreover, the next presidential election in 2000 gave birth to the first regime change where the KMT lost its ruling power over the island for the first time in 50 years. With the Democratic Progressive Party (DPP) mounting a strong challenge, this election was critical for the KMT government as to whether it could still hold power for the next four years. The conference for the fifth revision was adjourned after the negotiations between the KMT and DPP, waiting for the decision from James Soong, another political superstar, on whether he would split from the KMT and run on an independent ticket for his presidential candidacy.[528]
Notably, the president in Taiwan has played a significant role throughout the course of Taiwan's constitutional reforms. In response to people's outcry for democratization, President Lee Teng-hui convened a National Conference in 1990, which settled the issues for multi-stage constitutional reforms and reached a consensus on repealing the Temporary Provisions.[529] As the leader of the KMT government, President Lee delivered his announcement to complete the engineering of constitutional reform with his term of presidency after attending a national meeting in 1998. On April 1999, the National Assembly soon requested President Lee to convene a conference for amending the constitution.[530]
In addition, the timing of the court's ruling was politically sensitive, being so close to the upcoming presidential election, which was only a week later. As the KMT's presidential candidate, Lien Chan had criticized the fifth revision as totally irresponsible.[531] On the other hand, President Lee cautiously remained silent on the revision.[532] In such a context, the issuance of J.Y. Interpretation No. 499 was conceived as the “x” factor of the presidential election. If the Court had struck down the fifth constitutional revision before the election day, it was a clear message from the Grand Justice that the fifth constitutional revision was unacceptable. In this sense, the Grand Justice seemed to avoid criticisms for being involved in such political turbulence.
8.3