Global Constitutionalism and Judicial Activism in Taiwan

Abstract

In sociological research, law is usually considered as either a variable independent of the force of social change or a variable dependent on its shaping and moulding. Any changes in law, if not caused by social change, must be its effects. The post-1980s activism of the Council of Grand Justices (the Judicial Yuan) marked the emergence of what might be called the “global new constitutionalism” in Taiwanese society. Claiming a holistic concept of citizenship, the Grand Justices revamped the anachronistic pseudo-democratic mechanism through the medium of constitution interpretations. In order to facilitate democratic consolidation, the Grand Justices also painstakingly amended earlier versions of administrative law to facilitate the development of a reliable bureaucracy and enhanced public administration. As the battle for enhancing administrative accountability complicated the interplay between the judicial activists and other political actors, judicial activism unexpectedly linked to processes of regime change. At the same time, this activism provides researchers with a window on Tom Ginsburg's insurance thesis and Ran Hirschl's hegemonic preservation thesis regarding judicial activism.

Key Words:

• Constitutionalism
• globalisation
• judicial activism
• accountability
• citizenship
• legal change

Notes

The Judicial Yuan is one of Taiwan's five branches of government and the highest judicial organ. It also supervises the lower courts. Members of the Judicial Yuan are the Grand Justices.

Some comment is required concerning why no relevant social movement theories, such as those elaborated by McAdam's political process model or Tarrow's thesis regarding political opportunities structure, were addressed in discussing the political origins of judicial activism. The political process model was based on the resource mobilisation approach and attempted to integrate macro-, meso- and micro-approaches (McAdam, 1996; McAdam et al., 1996). The political opportunities structure thesis especially stressed the possibilities and limits for the development of social movements affected by the political situation in a given time span of a country (Tarrow, 1996). Both may be useful for explaining the rise of post-1980s judicial activism in Taiwan. Nevertheless, post-1980s judicial activism was limited to a group of Grand Justices who sought constitutional reform within the system and had little motivation to challenge the power holders. This characteristic stood in contrast to the typical definition of a social movement provided by Tilly (1994: 7) –“a social movement consists of a sustained challenge to power holders in the name of a population living under the jurisdiction of those power holders by means of repeated public displays of that population's numbers, commitment, unity and worthiness.” Therefore, when this research was first undertaken, it was not based on the framework of social movement theories. Neither did it make reference to social movement literature.

All the Grand Justices, including the Head and the Vice Head of the Judicial Yuan, are nominated and appointed by the President, with the consent of the Legislative Yuan. Under the 1947 Constitution, each Grand Justice was a life-long appointee and generally served a term of nine years for reappointment. The first term started in 1948 and the fifth term ended in 1994.

During Chen's presidency, he has been able to manoeuvre skilfully to strengthen his personal leadership by the removal of four DPP leaders from office after promoting them to the premiership. In spite of that, the failure to keep electoral promises and to curtail the persistently widening gap between the rich and poor has apparently made it harder to refurbish Taiwanese citizens' confidence in his rule.