The Constitutional Court as the instrument for people's veto power over constitutional revision
Conventional understanding of judicial review is to confine the function of political powers in the orbit of constitutional space, and that is done so that the court rules independently.
Investigating the contextual underpinnings of judicial rulings, one may find people engaged collectively in the making of judicial activism. The Court in J.Y. Interpretation No. 499 functioned exactly like that, serving as the instrument for the people to exercise their veto power against the discredited National Assembly that enjoyed monopolistic power over constitutional revision.8.3.1 The notorious National Assembly and incremental constitutional reform
The issuance of J.Y. Interpretation No. 499 served not only as a denial of the constitutional amendments but also an institutional check on the notorious National Assembly. Indeed, the National Assembly had long been condemned as illegitimate and politically unaccountable. Representatives of the National Assembly had been denounced as “old thieves” since their seats had not been up for election for some 40 years.[533] In addition, the Assembly’s monopolistic amendment power became troublesome as a “Leviathan” that could hardly be controlled by any constitutional mechanism of checks and balances.[534] By the time of the fifth constitutional amendment, the National Assembly was therefore targeted for both functional change and institutional reorganization. Yet, the obstacles underlying such reforms lay in the National Assembly itself. A paradox of constitutional reform could be clearly observed: whether the self-interested National Assembly would be willing to lessen its own political powers by exercising its monopolistic constitutional revision power.
The general public had been disappointed with the Assembly’s rent-seeking manipulations in each round of constitutional revisions, resulting in increasingly louder calls for its reorganization or total abolishment.
The well-known term “Legends in the Mountain” had been used as the metaphor to literally describe the unexpected result of political games in the amendment conferences, which had been held in the scenic Yangming Mountain adjacent to the national capital Taipei.[535] During the Wild Lily Movement in 1990, student groups and activists had launched an appeal to dissolve the National Assembly, with the slogan “weBeyond unconstitutionality 161 don't want hundreds of emperors.”[536] After the fifth constitutional revision was passed by the National Assembly, there were sweeping criticisms condemning the National Assembly as “shameless” for its self-imposed term-extension as well as against the whole revision.[537] Even the ruling KMT, the political party that enjoyed a super majority in the Assembly, was divided on whether Speaker Su Nan-cheng should be responsible for the failure of the revision. Conflicts inside the KMT eventually led to Su's departure from the KMT.[538] Not surprisingly, a party cadre moved to appeal to the Court, arguing for the profound unconstitutionality of the revision.
Public distrust of the uncontrollable National Assembly in exercising constitutional revision powers was taken seriously by the Court years before the controversial fifth round of revision. Responding to the charge that the National Assembly sought to push through constitutional revision without prior notice, the Court was keen to impose a judicial check on the process of constitutional amendment to prevent possible procedural manipulation by the National Assembly. In J.Y. Interpretation No. 314, the Court made it clear that constitutional amendments cannot be passed through a temporary meeting; otherwise, the National Assembly would bypass higher procedural requirements for amending constitutional provisions. Notably, as the Court emphasized, the process of constitutional amendment should be conducted in such a way that people can have the opportunity to know its purpose and be able to express their opinions.[539]
In J.Y.
Interpretation No. 342, the Court was asked whether the process of legislation in the Legislative Yuan was subject to judicial review. Based on the rules of the Legislative Yuan and the Constitution, the Court ruled the legislative process shall not be subject to scrutiny by the authority responsible for interpretation of the Constitution unless it clearly contravenes the Constitution. The Court viewed the legislative process an internal matter which falls within the scope set by the Legislative Yuan by virtue of the principle of parliamentary autonomy.[540]J.Y. Interpretation No. 342 and J.Y. Interpretation No. 499 were all about the due process of legislation, even though one concerned a legislative bill and the other concerned a constitutional revision proposal. Yet, the Court treated the two cases differently. In J.Y. Interpretation No. 342, the Court respected the autonomy of the Legislative Yuan. But in J.Y. Interpretation No. 499, the Court
took a hard stand. The Court thought there were manifest and gross flaws in the process of the fifth constitutional revision and held it unconstitutional. The contextual imperatives set forth above could be the drivers of the judicial about-turn.
8.3.2 Public sentiment towards frequent constitutional amendments
Incremental constitutional revisions require the National Assembly to convene and pass constitutional amendments frequently. Although constitutional revision was directed to resolving political crisis for democratization, public dissatisfaction with constitutional revisions arose as a clear reflection of public distrust in the politics of constitutional amendment. As observed, constitutional reforms in Taiwan have been criticized as “elite settlements,” with political parties exerting control in the monopolistic National Assembly and leaving little room for public participation.[541] This elite model of amendment would hardly win the heartfelt support of civil society but instead increasingly generate public alienation over constitutional reforms.
Even worse, the elite settlement of constitutional revision in Taiwan centers around the discredited National Assembly that seeks to expand powers and collect political gains in every round of constitutional revisions.In addition, frequent constitutional amendments would have a negative impact that undermines the stability of the constitutional order. Five rounds of constitutional revisions by the same institution in only nine years inevitably lead to calls for reforming the National Assembly itself.
8.3.3 Constitutional re-revision and political retaliation against the Court
The Court ruling on the unconstitutionality of the constitutional amendment was not surprising to the public at all. Many celebrated the decision as a successful resistance to the expansion of the National Assembly and a safeguard for constitutionalism. Yet, the Court choose to downplay, if not completely ignore, the fact that this revision should be in fact taken as a part of the incremental constitutional engineering for Taiwan's improved democratic representation. Indeed, the constitutional revision institution and process as specified by the Constitution is itself the source of the problem. Taking the constitutional revision to the Court and having it ruled unconstitutional was a short cut to this rather deep-rooted institutional problem.
Having issued a popular decision, the court nevertheless paid the price later on. After the ruling was made, Speaker Su was upset about judicial intervention,
Beyond unconstitutionality 163 criticizing the Court's ruling as inappropriate and ridiculous and stating that it would cause further constitutional crisis.[542] Moreover, Lin Yi-hsiung, then Chairman of the DPP, concurred with Speaker Su in arguing that the Court's power unconstitutionally overrode the amendment power.[543] Consensus was reached among the KMT, the DPP, and the New Party to convene the conference for the next revision. For the KMT, the reelection of the National Assembly was not the priority after losing the presidential election in March. On the other hand, it was another opportunity for the DPP to abolish the National Assembly.[544] In 2000, the same National Assembly gathered and passed a constitutional amendment that removed the pension of the grand justices who were not transferred from the judiciary.[545] This political retaliation was considered as punishment to the grand justices with scholarly backgrounds, to the lament of the judiciary.[546] One grand justice responded with concern over the possible impact on judicial independence.[547]
8.4