Explaining Constitutional Review in New Democracies: The Case of Taiwan

This paper extends the empirical analysis of the determinants of judicial behavior by considering the Taiwanese case. Taiwan is a particularly interesting case because the establishment and development of constitutional review corresponds to a political transition from an authoritarian regime dominated by one party to an emerging democracy. We test the attitudinal hypothesis by making use of a new dataset of ninety-seven decisions issued by the Taiwanese constitutional court in the period between 1988 and 2008. The attitudinal hypothesis is that the Taiwanese constitutional judges respond to party interests, either because their preferences coincide with the appointer or because they want to exhibit loyalty to the appointer.

Our econometric analysis does not provide strong evidence for the attitudinal hypothesis. However, we provide an explanation. Faced with a transition from a one-party political regime to a democracy, the Taiwanese Grand Justices needed to assert their independence from the other branches of government and gain credibility, thus dissenting more often, periodically and individually voting against the interests of the dominant party.