Taiwan's Constitutional Court at Risk: Political Maneuvering to Erode Judicial Independence

Taiwan’s Constitutional Court is facing a crisis: legislative maneuvering threatens to erode its independence and core functions. Proposed procedural changes and likely vetoes of judicial nominees appear aimed at undermining checks and balances, echoing Taiwan’s authoritarian past. While constitutional amendments to safeguard the Court seem improbable, alternative reforms—such as allowing interim appointments and imposing strict deadlines for legislative consent—could still be considered. Without such measures, the Court risks paralysis, leaving citizens without effective legal remedies and endangering Taiwan’s democratic governance – write Yi-Li Lee, Shao-Man Lee, Chien-Chih Lin and Vivianne Yen-Ching Weng

Taiwan, widely recognized as a constitutional democracy, has experienced constitutional disarray since the general election held on 13 January 2024. Although the Democratic Progressive Party (DPP) retained the presidency, neither it nor the Kuomintang (KMT) secured a majority in the Legislative Yuan, Taiwan’s national legislature (DPP 51 seats, KMT 52 seats). The result has been a nearly evenly divided government gripped by deadlock. With its eight seats, the Taiwan People’s Party (TPP) has joined the KMT-led coalition to form a legislative majority. In this tense arrangement, the Taiwan Constitutional Court (TCC) is expected to act as an impartial arbiter, a role now threatened by growing pressures stemming from a slowly shifting balance of power. But the parliamentary majority is attempting to paralyze the Constitutional Court and erode judicial independence by abusing its powers of statutory revision to change the Court’s quorum and decision-making majorities and by stalling the process for appointing new judges.  

Appointments to the Constitutional Court

Article 5 of the Additional Articles (constitutional amendments to Taiwan’s Constitution) prescribes that the TCC shall have 15 justices. The chief justice and six other justices had retired on 31 October 2024. To fill these seven vacancies, on 30 August 2024, the recently elected DPP President, Lai Ching-te, appointed seven nominees for the TCC, subject to the approval of the Legislative Yuan. Nonetheless, it is likely that the KMT-TPP alliance-controlled Legislative Yuan would veto most if not all these nominees on political grounds. It is understandable why the KMT would seek to weaken the TCC for two reasons.

First, as of December 2024, all the eight justices currently sitting on the TCC were nominated by the former DPP president Tsai Ing-wen and approved by a then DPP-led Legislative Yuan. The KMT might be concerned that approving the DPP-nominees would result in an overwhelming DPP influence on the TCC decisions.

Second, after the KMT-TPP alliance secured the majority of seats in the legislature, it aggressively pursued an amendment to the Law Governing the Legislative Yuan’s Power, aiming to expand significantly parliamentary oversight over the executive branch at the expense of checks and balances. The amendment allows the Legislative Yuan to question the President during the State of the Nation address, requires nominees of certain public offices to submit all requested information, and allows the imposition contempt sanctions on government officials as well as private individuals. The controversial revision provoked a civil movement and soon became a subject of constitutional litigation. On 25 October, the TCC declared many provisions of the amendment unconstitutional and limited the applicability of others. This judgment undermined the legislative agenda of the KMT-TPP alliance. In response, the alliance has intensified its critiques of the TCC, especially with respect to the impartiality of the justices.

With tensions rising between the executive and legislative branches, the KMT-TPP alliance-controlled Legislative Yuan seems to be determined to retaliate against the TCC by amending the Constitutional Court Procedure Act (CCPA), which threatens the integrity of Taiwan’s rule of law. Specifically, if the KMT’s proposal to revise the CCPA clears the legislature, it would set the TCC decision quorum at “two-thirds of the legally prescribed members” and increase the decision-making threshold to a two-thirds majority of the judges present. In other words, the revision would bar the TCC from rendering any decision if fewer than ten justices participate in it. Since the KMT-TPP alliance-controlled legislature might refuse to confirm any of President Lai’s nominees, the passage of the amendment would effectively paralyze the current TCC, which only has eight justices currently serving.

The proposed changes diverge significantly from global practices; they are regarded as so serious a threat to Taiwan’s judicial autonomy that, in a rare move, the Judicial Yuan issued a statement expressing deep concerns about the proposed amendment. However, with the TPP appearing to support the KMT initiative, the TCC may soon face paralysis. Indeed, the KMT’s proposal to amend the CCPA is so egregious that even one former TCC justice, appointed and confirmed by the KMT, claimed that she would have nullified the amendments if they were passed. Furthermore, this proposal has sparked protests from hundreds of lawyers.

Historical Context and the Risk of Judicial Paralysis

Historically, dictators have manipulated the procedural rules to contain the TCC during the authoritarian period. Back in 1958, in the midst of the KMT’s martial-law rule over Taiwan (1949–1987), the TCC lost its procedural independence to the Legislative Yuan and became a restrained institution that could function only under a stringent three-fourths majority requirement for both quorum and decision making. This restrictive measure was a retaliatory move by legislators offended by a TCC decision. As Taiwan began democratizing after the end of martial law, the Legislative Yuan enacted the 1993 TCC procedural reform. It relaxed the decision threshold, from three-fourths to two-thirds. The aim of the 1993 reform was to ensure that deadlock in the political branches of government would not completely paralyze the TCC. The initial passage of the CCPA marked the TCC’s first truly substantive push to regain procedural independence and judicial autonomy.

Currently, the TCC—despite having only eight of its 15 members—has been able to render judicial decisions. The resilience of the Court rests, in part, on the aforementioned CCPA. This watershed piece of legislation, which took effect on 4 January 2022, not only lowers the support threshold for a TCC ruling from two-thirds of participating justices to a simple majority, but also introduces the long-awaited mechanism of constitutional complaint. The simple-majority quorum, based on “members in service”, serves as an anti-deadlock mechanism to maintain the TCC’s role in the checks and balances of Taiwanese government.

Nevertheless, by stalling the consent process for TCC nominees, and by proposing legislation that would amend the CCPA, the KMT-TPP-alliance-dominated Legislative Yuan has positioned itself to challenge not only the DPP president and the judiciary (most notably, the TCC) but also the citizens of Taiwan. Should the TCC become paralyzed as a result of the KMT’s stalling and reformist tactics, the country’s people risk being deprived of their non-derogable human right to effective legal remedies, as individual petitions account for over 98 per cent of the TCC’s caseload.

The current political deadlock in Taiwan echoes the divided government that gripped the country in 2007, when the DPP president nominated eight candidates for the TCC, but the KMT-led Legislative Yuan rejected four. The impasse did not disrupt the TCC’s operations, as voters in March 2008 elected a KMT candidate to the presidency. Supported by a KMT majority in the Legislative Yuan, the country’s new president filled the vacancies within a year. Fast forward to 2024, however, such a swift resolution seems unlikely. With the divided government still in the early stages of the current presidency, and with no progress on the horizon in the Legislative Yuan, a prolonged stalemate seems unavoidable and has the potential to undermine the TCC’s ability to function effectively.

Sacrificing Judicial Independence for Political Gain

In recent history, rule-of-law backsliding has more often than not manifested itself in an overreach of executive power at the expense of an increasingly constrained judiciary. Taiwan, however, illustrates an entirely different dynamic: in a divided government lacking genuine power-sharing, an overreach of legislative power is the principal threat to judicial independence. To undermine the TCC, KMT legislators, along with their TPP allies, have consistently portrayed the Court as a mere extension of executive authority—a portrayal that casts serious doubt on the Court’s role as an impartial judicial guardian.

Although the TCC is only one of several public institutions entangled in current political struggles between the President of Taiwan and the Legislative Yuan, what makes the TCC crisis stand out is the TCC’s critical role as an arbiter in politically and socially divisive matters. Some may argue that it is natural, in democracies, for the legislative branch to seize opportunities to advance its own agenda while the executive branch looks for ways to limit or bypass legislative checks. Within this dynamic back-and-forth contest for power, apex courts, such as the TCC, are in a prime position to mediate between these two competing powers. However, for this mediation to be applied efficaciously, the courts must be functionally independent of the other two branches. When political factions perceive the judiciary as a threat to their agenda, they may propose or enact legislation that favors their interests over the judiciary. To this extent, legislation becomes an antidemocratic tool insofar as it strips a judiciary of its right to invalidate unconstitutional laws.

Constitutional Limits and the Need for Multipartisan Rule-Making

The Constitution of Taiwan sets an exceptionally high bar for the passage of constitutional amendments: at least three-fourths of the Legislative Yuan must approve a proposed amendment, which must then receive the approval of a majority of the total number of electors in a referendum. As a result, it is extraordinarily difficult to reform the process by which justices attain their position on the TCC or change the size of the court. Nevertheless, to achieve a fair balance of power, to protect the TCC from political manipulation, and to prevent Taiwan from slipping into rule-of-law backsliding, the state needs a supplementary set of rules for the appointment of justices. These rules could take the form of legislation outlining clear nomination and consent procedures that, for example, permit interim appointments and set stringent deadlines for legislative consent.

In the short term, there seems little chance that the Taiwanese government can enact such rules. However, the worsening polarization might ironically mark the first step toward a degree of multipartisan collaboration. In other words, as Taiwan’s divided government continues to intensify the risks of prolonged delays and other destructive complications, centrists in the two main political parties may seek a collaborative way out of the political stalemate.

Yi-Li Lee is an Associate Professor at the Institute of Law for Science and Technology, National Tsing Hua University. Her academic expertise includes transitional justice, comparative constitutional law, international human rights law, international humanitarian law, and international criminal law.

Shao-Man Lee, focusing on AI and Law, is an assistant professor at the Miin Wu School of Computing, National Cheng Kung University.

Chien-Chih Lin is a research professor at Institutum Iurisprudentiae, Academia Sinica and a professor at Graduate Institute of National Development, National Taiwan University. His works focus on judicial behavior and comparative constitutional law in Asia.

Vivianne Yen-Ching Weng, specializing in human rights law, is an associate professor at the Department of Political Science and International College of Innovation of Taiwan’s National Chengchi University.

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Suggested citation: Yi-Li Lee, Shao-Man Lee, Chien-Chih Lin and Vivianne Yen-Ching Weng, ‘Taiwan's Constitutional Court at Risk: Political Maneuvering to Erode Judicial Independence’, ConstitutionNet, International IDEA, 13 December 2024, https://constitutionnet.org/news/voices/taiwans-constitutional-court-risk-political-maneuvering-erode-judicial-independence

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