Moving Towards a Nominal Constitutional Court? Critical Reflections on the Shift from Judicial Activism to Constitutional Irrelevance in Taiwan's Constitutional Politics

The Taiwan Constitutional Court (TCC, also known as the Council of Grand Justices) has been regarded as a central player in Taiwan’s transition to democracy in the late twentieth century. 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. The TCC scholarship asserts that the TCC has continued to play a pivotal role in Taiwan’s constitutional politics in the twenty-first century.

Taking issue with this popular view, this article focuses on twenty-first century TCC case law to argue that Taiwan’s constitutional politics has moved towards de-judicialization as the TCC has gradually turned away from judicial activism in the face of escalating constitutional conflicts. With the TCC retreating from constitutional politics, this article argues that its constitutional jurisdiction is becoming nominal with the Constitution losing its grip on politics again.