Normative Implications of Parallel Constitutional Identities
As one Taiwanese justice has pointed out, a divided country will naturally breed divided constitutional personality.[840] Although many may disagree as to whether Taiwan is a divided country, Justice Su is correct that two distinct and diametric constitutional identities have emerged from the Constitution.
The juxtaposition of both Chinese and Taiwanese identities has shed new light on several constitutional issues, such as constitutional endurance, judicial dialogue and originalism.A. Constitutional Endurance
Similar to the Constitution of Japan, it is sometimes argued that the ROC Constitution was imposed upon Taiwanese notwithstanding the fact that some Taiwanese representatives did participate in the constituent convention.[841] The argument has some merit, but it fails to answer why the Constitution has endured up to the present day. Intimidation from the PRC may explain why Taiwan has not yet enacted a new constitution, but this explanation alone is hardly satisfying. To what extent the Constitution should be labelled as an imposed one is unclear because there are different levels of imposition.[842]
In fact, the endurance of the Constitution can be better appreciated through the prism of constitutional identity. A symbiotic relationship exists between the stability of the ROC Constitution and constitutional identity, particularly the Taiwanese constitutional identity. The Constitution provides fertile ground for the development of constitutional identity, and constitutional identity that has been repeatedly confirmed in constitutional amendments and judicial decisions in turn renders the Constitution more entrenched in Taiwanese society. Specifically, the first three rounds of constitutional amendments not only supported the legitimacy of the Constitution and prolonged its longevity, but also simultaneously cultivated Taiwanese constitutional identity by reinforcing domestic representation.[843] Subsequently, the DPP, the long-time opposition party, also participated in amending rather than rewriting the Constitution.
Its cooperation with the KMT in the last four rounds of constitutional amendments has further domesticated the Constitution. In this light, the Taiwanese constitutional identity has been firmly entwined with the ROC Constitution. The emergence of the Taiwanese constitutional identity as another constitutional identity embodied in the Constitution saves the latter from being repealed.The development of the ROC Constitution in Taiwan suggests that an inclusive drafting process may be less influential than inclusive constitutional provisions in determining the durability and self-enforcement of a constitution.[844] From this perspective, the issue of inclusion in the context of constitution-making is a matter of constitutional identity. Moreover, the relationship between constitutional identity and constitutional stability may be reciprocal: an enduring constitution makes it easier to foster constitutional identity, whereas constitutional identity raises people's loyalty to and respect for the Constitution.
B. Judicial Dialogue and Originalism
With the wide spread of judicial review and constitutional courts after the third wave of democratisation, recent decades have witnessed the rise of transnational constitutionalism and the rampant growth of judicial dialogue among apex courts.[845] In Taiwan, the Court does not expressly engage in judicial dialogue very frequently. Quantitatively, only about one per cent of the majority opinions explicitly cited foreign decisions.[846] This number increases considerably to 16 per cent as far as separate opinions are concerned.[847] Among all these opinions, the major reference jurisdictions are Germany, the US, Japan, the European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR).[848] Furthermore, ‘constitutional ideas may be migrating in the absence of explicit judicial borrowing'.[849] In addition to explicit citations, the Court is quite receptive to foreign legal doctrines, particularly in the domains of free speech and equal protection.[850]
How do we explain judges' choice of their reference jurisdictions? All of the traditional arguments are plausible, but the role of constitutional identity is often neglected. To specify: ‘A court's position and how it views its role with respect to sociopolitical struggles over the polity's collective identity is at least as significant a factor in explaining judicial choices of foreign reference as any structural, linguistic, or legal factor.' [851] In this view, the Supreme Court of Israel selectively looks to Western courts, regardless of the differences in language, legal tradition and regional proximity, because Israel wants ‘to be included in the liberal-democratic club of nations’.[852] In this light, judges, like framers, project what they believe to be the correct blueprint of a country in their opinions when interpreting the constitution.
This practice takes place in Israel, India and Ireland.[853]Similarly, judicial engagement in Taiwan may be attributed in part to the competition between Chinese and Taiwanese constitutional identities. By the standards of conventional wisdom on judicial engagement,[854] few countries are closer to the ROC than the PRC in terms of linguistic similarity, geographical proximity and traditional culture. Nevertheless, the Court has never consulted the Supreme People’s Court in China. Instead, it seeks out foreign decisions that are made in completely divergent socio-political environments with which Taiwan is unfamiliar. Similar to its Israeli counterpart, the Court’s dialogue with Western courts, instead of Chinese courts, ‘stems from a deeper ideational commitment to a certain vision of the good society and of the polity’s cultural orientation and place in the international family of nations’. [855] Normally, ‘the more established a given constitutional court is or the more developed its jurisprudence, the lesser the likelihood it will refer to foreign precedents’. [856] However, this scenario is not the case in Taiwan. The frequency of judicial borrowing seems to escalate over time, and this trend is consistent with the development of Taiwanese constitutional identity.
Furthermore, the tepidness on originalism also reflects the tendency to imbue foreign elements, rather than Chinese materials, into Taiwanese constitutional identity. In Taiwan, originalism has been rarely invoked by the Court, and no constitutional law scholar has ever advocated for a more extensive application. Original meaning seems to be immaterial to the constitutional understanding in most controversial cases in Taiwan. Part of the reasons for this should be attributed to the transformation of constitutional identity. In addition to the issue of whether the dead should govern the living, originalism in Taiwan faces another challenge: with the rise of Taiwan consciousness, the identity of the founding fathers becomes less clear, and their intention becomes less relevant. Most people who currently live on the island-state do not feel connected with the founding fathers of the ROC. The massacre and despotism of the KMT during the authoritarian period further render the founding fathers (most of them were KMT members) less influential, if no more resentful, to Taiwanese people. In a word, the decline in Chinese constitutional identity and the surge of Taiwanese constitutional identity render originalism quite unpopular in Taiwan.
V.