Written by Shih-An Wang.
Image Credit: Interior in Constitutional Court by Jiang/ Wikimedia Commons, license: CC BY-SA 3.0.
On December 20, 2024, Taiwan’s Legislative Yuan passed a troubling amendment to the Constitutional Court Procedure Act (the CCPA), imposing an impractically high threshold for Taiwan’s Constitutional Court (the TCC) to declare an act of government unconstitutional. The legislation has sparked widespread outrage, as it threatens to handicap the TCC’s capacity to maintain judicial independence and safeguard individuals’ fundamental rights. In addition, the amendment exposes the disturbing undercurrent that Taiwan, a decade-long constitutional democracy, may have been drawn into the vicious tides of democratic backsliding that have plagued democratic countries worldwide. Therefore, an unsettling question arises: Is Taiwan at risk of democratic backsliding?
This article examines the 2024 amendment to the CCPA from the perspective of democratic backsliding. I argue that the amendment demonstrates an alarming political attempt to undermine the TCC’s integrity, and we need to cater to greater levels of public oversight to halt the derogation of democracy. To this end, I will lay out the discussion about democratic backsliding and constitutional law. Subsequently, I will introduce the CCPA and then review the 2024 amendment to the CCPA. Finally, I will discuss the implications of the 2024 Amendment on the TCC and, more generally, on Taiwan’s democracy.
Democratic Backsliding and Constitutional Law
Constitutional scholars have been concerned with the quality of constitutional democracy in recent decades. Recently, scholars observed a global trend of “democratic backsliding,” a process by which the health of democracy deteriorates incrementally. To be sure, countries suffering from democratic backsliding hold regular elections, enjoy general levels of fundamental rights protections, and usually have a well-functioning administrative system. However, there are incremental changes to the functions of constitutional institutions, which seem innocent on their own terms but can result in irreversible harm to democracy.
A critical indication of democratic backsliding is the operation of courts. Envisioned as the guardian of citizens’ fundamental rights, courts are expected to be independent. Nevertheless, courts are also fragile institutions. Unlike the executive or the legislature, neither do courts enjoy a visceral, direct link to the public, nor do they hold control over a state’s financial assets and the military. Accordingly, courts are politically delicate. Their success hinges upon a certain degree of respect by the political branches. Without a genuine appreciation for the courts, politicians may distort them through various tools, undermining the capacity of judges to protect liberal democracy.
Politicians may attempt to control the courts through nominally neutral or innocent tools. In democratic systems, it is unlikely for politicians to attack judiciaries bluntly—an explicit denial of the core values of democracy. On the contrary, politicians may seek to alter the procedures or operational rules by which judges decide on cases. This strategy of political manoeuvring is difficult to identify, as the public usually lacks the time and expertise to appreciate its stakes. With no substantial public scrutiny of the political actors, a piecemeal episode of political manoeuvring may eventually result in democratic backsliding.
What is the Constitutional Court Procedure Act? Why Does it Matter?
The TCC is the guardian of Taiwan’s Constitution. It is envisioned to protect fundamental rights, the separation of powers, and the rule of law. The CCPA defines the ground rules by which the TCC exercises its power established under the Constitution. Specifically, Article 5 of the Additional Articles of the Constitution and Article 78 of the Constitution establish the foundational legal framework for the TCC. Additionally, Article 1 of the CCPA stipulates that the TCC is in charge of six powers, including (1) reviewing constitutional complaints and determining the constitutionality of statutes; (2) resolving disputes between constitutional organs; (3) deciding on the impeachment of the President or the Vice President; (4) dissolving unconstitutional political parties; (5) handling disputes concerning local self-government; and (6) unifying the interpretation of statutes and regulations.
While the CCPA does not directly deal with the substance of a case (i.e., the facts, disputed acts of government, and legal bases), it plays a pivotal role in determining the scope and breadth of power that the TCC can exercise over particular disputes. When exercising powers, the TCC must determine the composition of the bench, require litigation documents, arrange oral arguments, and make decisions pursuant to the relevant provisions under the CCPA. Therefore, the quality of the CCPA is the prerequisite for the TCC’s operation. It secures the independent exercise of power by the Court.
In 2024, the CCPA faced what may have been the greatest danger in the past thirty years.
The 2024 Amendment to the Constitutional Court Procedure Act
The year 2024 has witnessed tremendous turbulences in Taiwan’s Legislative Yuan. In January 2024, the Kuomintang (KMT) won 52 out of 113 seats in the general election of Taiwan’s Legislative Yuan. While this was a slight win over the governing party, the Democratic Progressive Party (DPP), the KMT secured a majority by collaborating with the Taiwan People’s Party (TPP), which won 8 seats in the election. In the past months, the KMT-led coalition passed several controversial bills, bypassing the ordinary processes of legislative deliberation.
Of particular significance is the amendment to the Law Governing Legislative Yuan’s Power (LGLYP) enacted on May 28, 2024. The LGLYP aimed at expanding or strengthening the Legislative Yuan’s own constitutional authorities. Many commentators considered the LGLYP to be a serious conduct of self-entrenchment, imperilling the core functions of the executive and violating the separation of powers. Faced with requests to review the constitutionality of this controversial act, the TCC delivered the Judgment 113-Hsien-Pan-9 on October 25, 2024. The TCC declared that parts of the LGLYP excessively empowered the Legislative Yuan. They unconstitutionally encroached on the executive’s competence.
Irritated by the TCC’s “non-cooperation,” the KMT majority turned their eyes to the CCPA, intending to hold a tighter grip over the TCC’s operation. The amendment concerns with two thresholds for the TCC to make decisions. First, under the old CCPA, the TCC could make judgments and rulings of an injunction based on a resolution passed by “half” of “all participating” justices—a practice that conforms with international standards. Nevertheless, under the new bill, the TCC could not make judgments and rulings without “two-thirds” of the “constitutionally stipulated” number of justices participating in a meeting. Given that the Constitution requires 15 Justices in office, the new bill basically required a supermajority of 10 justices sitting in a meeting to make any decisions. Second, while there were no specific rules governing the TCC’s decisions of unconstitutionality, the new bill required that a decision of unconstitutionality could not be made without nine justices voting affirmatively.
The proposers justified their bill by claiming the necessity for greater consensus among the justices on any decisions made. This rationale seemed neutral and benign on its own terms, as no one would deny the significance of strengthening the quality of judicial decision-making. Nevertheless, practically speaking, it is difficult to have that many justices sit in a meeting and even agree on the unconstitutionality of an act. The result of the Court that has been deprived of its ability to respond swiftly means that all legal acts are, in practice, constitutional—a result that challenges the TCC’s independent functioning.
Moreover, the implications of the amendment to Taiwan’s constitutional democracy should be analysed not simply by the justifications themselves but also by what the legislators were doing at the same time. In the past months, no evidence suggested the KMT-dominated Legislative Yuan would like the TCC to operate smoothly. In November, the Legislative Yuan was slow in reviewing seven Justice nominees of the TCC (including the Chief Justice) nominated by President Lai on August 30, 2024, who were supposed to fill the vacancies of seven Justices who retired on October 31, 2024. It remains sceptical that the Legislative Yuan is determined to protect the TCC’s institutional integrity.
Unsurprisingly, the proposed amendment to the CCPA cleared the Legislative Yuan on December 20, 2024. Four days later, the Legislative Yuan vetoed all seven nominees to the TCC on December 24, 2024. The Legislative Yuan’s decision was perhaps an expected result, as the KMT-led majority believed that the nominees were politically inclined to the DPP.
Implications of the 2024 Amendment on Taiwan’s Democracy
There is no indication that the political deadlock in the Legislative Yuan will end soon. With only eight justices in office, the TCC is unlikely to make decisions or rulings of an injunction under the newly amended CCPA. Even if the TCC could summon a meeting, the rule of approval complicates the TCC’s autonomy to make decisions of unconstitutionality. It is too early to tell if the TCC’s undermined capacity will result in an immediate derogation of Taiwan’s fundamental rights protection at this moment. However, if the political deadlock persists, and if the TCC cannot find a way out to exert its power effectively, the deterioration of Taiwan’s democracy seems very likely.
As an incremental process, democratic backsliding does not occur in a sudden. In other words, careful decisions and actions may overturn the path toward a democratic demise. We need greater levels of public attentiveness to what happened and what will happen to the TCC. Public scrutiny of the legislature is, of course, necessary; moreover, strengthening the quality of administrative decision-making is another way to mitigate the risks of rights deterioration. In short, there is much we should do to prevent the CCPA amendment from becoming the smoking gun of democratic backsliding.
Shih-An Wang is a project associate professor at the Graduate School of Law, Kobe University, Japan. She holds a Doctor of Jurisprudence (J.S.D.) from the University of Chicago Law School, USA. She received two master’s degrees, one from UChicago and the other from National Taiwan University. Her research focus touches upon comparative constitutional law, law and democracy, national security law, and constitutional history and theory.
This article was published as part of a special issue on ‘Farewell 2024, Fresh start 2025?’.
Taiwan Insight 