Politicization of the Constitutional Court and public scrutiny of constitutional revision
Similar to other Asian courts, the Court has been observed to be politicized, engaging itself more frequently in dynamic interactions among political branches and with the civil society.[548]
8.4.1 The shaping of a political court
It is not surprising that the Court was willing to take a hard look at the fifth constitutional revision with the people and political forces behind it.
The Court went with the political tide to strike down constitutional amendments as a whole, leaving no room for the National Assembly to deliberate further. As Martin Shapiroputs it, however, courts are indeed part of the political process, relying on support from the political system.[549] From this perspective, judicial reasoning in J.Y. Interpretation No. 499 can be regarded as the reflection of the underlying political and social tide in which the Court was situated. Grand justices may be well aware that they were confirmed then by the National Assembly. However, they still wiped out the entire constitutional revision in the midst of the heated presidential election with strong and clear public opinion behind them. What they did not anticipate then was the retaliation from the National Assembly in their next constitutional revision.
Though it was not the first time for the Court to deal with such politically charged issues, judicial intervention in constitutional amendment disputes marked a turning point in the trajectory of constitutional reform and democratic transition in Taiwan. Moreover, engaged civic groups and vibrant civil society, which have flourished since the 1980s, made a significant contribution to Taiwan's constitutional reform even when their sovereign power over constitutional change was taken away by the National Assembly. Reading beyond the determinate normative construction in the decision, the Court is indeed a “people's court” that plays an integral role by engaging itself in the stream of constitutional reform with public support deeply felt.
8.4.2 Judicial strategies and risk management
The issue behind J.Y. Interpretation No. 499 was a politically charged one. Grand justices did not choose the case before them, but they could exercise judicial strategies to minimize political backlash. The Court strategically went with the mainstream opinion as chanted by major political parties in the presidential election to avoid contradicting the will of the majority. The National Assembly, on the other hand, was treated as the “underdog” facing vigorous condemnation from the public. Indeed, the constitutional petition against the Assembly was then formed by a cross-party coalition in the Legislative Yuan representing major political parties and launched attacks on this notorious constitutional revision. However, this “majoritarian” judicial strategy did not exempt the Court from political retaliation as seen above.
8.4.3 The integral role ofpopular sovereignty and public scrutiny in reviewing constitutional amendments
In the contextual analysis of J.Y. Interpretation No. 499, one can find public scrutiny played an integral role in judicial review of constitutional amendments. The problem behind the fifth constitutional revision lies primarily in public dissatisfaction with the National Assembly itself. In this sense, the Court functions
Beyond unconstitutionality 165 not only as an institutional check on the constitutionality of the revision but as an instrument of the people's veto power against constitutional amendments to make the National Assembly politically accountable.
8.4.3.1 Popular sovereignty and the Court
From the perspective of judicial politics, there is a profound relationship between popular sovereignty and the judiciary. On the one hand, popular sovereignty provides legitimacy to all governmental powers including the one vested with the judicial branch. Judicial power has been commonly criticized on democratic grounds as the long-standing “counter-majoritarian difficulty” is primarily based on the premise that judges are not selected by the people.[550] In this sense, popular sovereignty not only serves as a checking mechanism on the exercise of judicial power but also plays a critical role in reinforcing the Court's constitutional legitimacy.
On the other hand, courts may adopt the strategy to decide cases in accordance with the will of the people in order to obtain public support. As the “least dangerous branch,” the judiciary is powerless to directly implement its preferred policies. By rendering “majoritarian” decisions, courts can build up their institutional capacity as well as reputation to compete with other political branches.[551]Indeed, to theorize the role of popular sovereignty in interacting with the judiciary is not new. Larry Kramer's popular constitutionalism asserts a significant role for public interpretation of the constitution, against judicial supremacy in which the opinions of judges are placed as final and absolute in the shaping of constitutional order and rights recognition.[552] Similarly, the idea of civic constitutionalism as observed in the maturing democracy of Taiwan also highlights the constitutional function of civil society as it remains watchful and engaged not only in constitutional politics but also with respect to judicial review on rights protection and government integrity. Civil groups in Taiwan, often with the support of one-third of the Legislature, could bring issues to the courts for resolution, engaging in constitutional discourse, and pushing forward the consolidation of constitutional rights and principles. On the other hand, while weaving the fabric of the constitution, the Court keeps abreast of public views on matters concerning constitutional adjudication.[553] These insights remind us that courts do
not make decisions independently by leaving the people's will aside, which echoes Martin Shapiro's observation of courts as part of the political process.
8.4.3.2 Popular sovereignty as a catalyst in J.Y. Interpretation No. 499
The Court ruled in J.Y. Interpretation No. 499 in accordance with the people's will. By looking into historical context, one can therefore understand the role of popular sovereignty behind, beneath, and beyond this case.
Since Taiwan's democratization in the late 1980s, civil society has remained vibrant, leading to significant political change by engaging constitutional revisions, major legislation, and the judicial process, including appeals to the Constitutional Court.[554]In previous constitutional interpretations, the Grand Justices had paved the way for popular sovereignty to play a critical role in constitutional revision, notwithstanding the fact that the Constitution vests the National Assembly with monopolistic power to revise the constitution. The Court issued J.Y. Interpretation No. 261, nearly a decade before No. 499, holding that the postponed reelection of representatives must be held in light of social and political changes.[555] During the Court's deliberation, students chanting for constitutional reform, including abolishing the National Assembly, before the Chang Kai-shek Memorial, culminated in the renowned Wild Lily Movement that contributed to consecutive rounds of constitutional reform for democratic change.[556]
It is due to the continuous public dissatisfaction with the National Assembly that the Court took a strong step in J.Y. Interpretation No. 499 to repeal the whole constitutional revision. As mentioned above, the notorious National Assembly monopolized constitutional amendment power for its political interests. To be more specific, the term-extension clause in the fifth constitutional revision was considered to have probably recalled the resurrection of the authoritarian tradition of life-long tenure of the national representatives.[557] Indeed, citizens in Taiwan did not pay attention to constitutional theories such as unconstitutional constitutional amendment or the principles of popular sovereignty. Rather, what people really opposed was the nightmare that might have been imposed by the National Assembly. Public antagonism to the fifth constitutional revision was expressively written in all the three separate applications to the Court, which sent a clear message to the Court that the people were highly dissatisfied with both constitutional revision as well as the National Assembly itself.
8.4.3.3 Beyond unconstitutionality: the triumph of public scrutiny of Taiwan's constitutional revision
In the contextual analysis of J.Y. Interpretation No. 499, one can find public scrutiny playing an integral role in the judicial review of constitutional amendments. The problem behind the fifth constitutional revision lay primarily in public dissatisfaction with the National Assembly itself. In this sense, the Court functioned not only as an institutional check on the constitutionality of the revision but an instrument of the people's veto power to constitutional amendment to make the National Assembly itself politically accountable. The paradox of constitutional reform in Taiwan was therefore resolved to some extent since the will of the people would be taken into serious account and the Assembly's exercise of monopolistic amendment power could be checked by the Court. The final abolition of the National Assembly and the inception of a public referendum in the 2005 constitutional revision by a mission-oriented National Assembly, formed from party lists proportional to aggregate votes from congressional election, represent the final triumph of public oversight of constitutional revision.
Even though the National Assembly, by design, functioned as the representative of the people to exercise its constitutional power, the people themselves and the idea of popular sovereignty were not absent in the dynamics of Taiwan's constitutional reforms. The Court repeatedly highlighted the role of the people in the amendment process through series of judicial interpretations. Procedurally, people should have the opportunity to express opinions and to engage in rational deliberation during the process. Moreover, constitutional amendments would be unconstitutional if the principle of popular sovereignty was undermined. Indeed, civil society remained watchful and engaged during the time of constitutional reform as a guardian of the constitutional revision power enjoyed solely by the National Assembly.[558]
It is very unlikely that the Court would vote down a constitutional amendment in the current system where a constitutional amendment is done through public referendum.
But the case would have been different had the National Assembly not exercised monopolistic control over the constitutional revision process. This is not mere speculation. Nearly 15 years after J.Y. Interpretation No. 499, the Court once again reviewed constitutional amendments passed in 2005. Not surprisingly, the same Court upheld the legitimacy and constitutionality of the amendments in J.Y. Interpretation No. 721, holding that the electoral reform does not violate the principle of popular sovereignty in the constitutional revision. Observe the contextual differences between these two judicial rulings. While J.Y. Interpretation No. 499 dealt with amendments passed by the National Assembly, J.Y. Interpretation No. 721 dealt with the constitutional revision proposed for the first time by the Legislative Yuan, rather than the National Assembly, and passed through a more democratic process.8.5 Conclusion
Taiwan's constitutional reform for democratic transformation has taken a path of incremental revisions. From 1991 to 2005, there were seven rounds of constitutional revision with the fifth round in 1999 declared unconstitutional by the Court. Reading into the holding and reasoning of the judicial ruling, one may be impressed with the Court's strong determination and iron-clad position to uphold constitutional basic structure and principles. As we looked into the political and social context, we found the Court took the easy way out. The fifth constitutional revisions by the National Assembly should be taken as a continuous part of the incremental constitutional engineering for improved democratic representation in Taiwan. With growing general distrust of the National Assembly and an unresolved constitutional crisis of representation, including the National Assembly, the Court in J.Y. Interpretation 499 served as the guardian of the constitutional revision process with the support of the general public. The Court functioned, therefore, not only as an institutional check on the constitutionality of the revision but as an instrument of the people's veto power against constitutional amendments to make the National Assembly itself politically accountable. The ruling reflects a continuous struggle of public oversight over constitutional amendment, in which the general public has struggled to regain their sovereign power over constitutional revision.
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