Ming-Sung Kou on Towards a Nominal Constitutional Court? （郭銘松論台灣憲法法庭）Posted: 03/28/2016
Digging into the TCC case law from 2000 to 2016, I am to show that the TCC’s importance and influence continuously shrank during this period firstly with the intensified partisan rivalry between the KMT-dominated Pan Blue group and the DPP-led Pan Green camp started during President Chen’s tenure followed by the KMT’s triumphant return to power in 2008. Although both the legally defined jurisdiction of the TCC and the institutional guarantee of its independence remind unchanged, its rulings failed to settle crucial political disputes when the Pan Blue and the Pan Green were stuck in a political zero sum game under the DPP eight-year reign.
The Taiwan Constitutional Court (TCC) has been regarded as a central player in Taiwan’s transition to democracy in the late twentieth century. Self-transforming from a rubberstamp under the authoritarian regime into a facilitator of political dispute settlement, the TCC channelled volatile political forces into its jurisdiction. Thanks to the TCC’s judicial activism, the judicialization of constitutional politics was characteristic of Taiwan’s democratization in the last two decades of the twentieth century. In the TCC scholarship is the proposition that the TCC has continued to play the pivotal role in Taiwan’s constitutional politics in the twenty-first century. Taking issue with this popular view, this Article focuses on the TCC case law in the twenty-first century and suggests that Taiwan’s constitutional politics has moved in the direction of dejudicialization as the TCC has gradually turned away from judicial activism in the face of escalating constitutional conflicts. With the TCC retreating from constitutional politics, I argue that its constitutional jurisdiction is becoming nominal while the Constitution is losing its grip on politics again.