Title: Taiwan’s Democracy Faces Challenge Amid Legislative Tug of War
Taiwan’s democratic establishment is under fire, with recent political unrest in the nation’s Legislative Yuan casting a dark shadow. A constitutional court reform, helmed by Kuomintang (KMT) lawmaker Weng Hsiao-ling, has sparked significant public outcry in recent times. Over 300 attorneys, together with a former Justice appointed by KMT’s President Ma Ying-jeou, have staged public protests. Additionally, civil society groups have organized multiple rallies to resist the proposed amendments. Despite the widespread resistance, the KMT and its partner, the Taiwan People’s Party (TPP) – two opposition factions with a legislative majority – successfully advanced the contentious bill late last year.
The newly proposed Constitutional Court Procedure Act (CCPA) could obstruct the functioning of Taiwan’s Constitutional Court – currently operating with just eight active justices – by making it incapable of deliberating cases or declaring laws unconstitutional due to insufficient quorum. This potential incapacitation of the Constitutional Court is raising alarms as one of the most serious threats to Taiwan’s democracy in recent history.
The attack on the Constitutional Court is not accidental. As legal scholars Tom Ginsburg and Aziz Huq have noted, powerful constitutional courts often become targets for erosive forces. The KMT’s antagonism towards the court is primarily rooted in its past unsuccessful attempts to augment legislative power, which were thwarted by judicial checks in late October last year.
After suffering three consecutive presidential election defeats since 2016, the KMT regained its position as the leading party in the legislature in early 2024 and formed a majority with the TPP. Upon assuming power, the KMT-led coalition promptly enacted reforms to broaden the legislature’s investigatory and oversight abilities. However, the Constitutional Court stepped in and nullified these laws, arguing that they infringed on individual rights and breached the principle of power separation.
The KMT countered its defeat by attributing it to the “greening” of the court, as all 15 sitting justices had been nominated by the ruling Democratic Progressive Party (DPP). Even before the ruling, the KMT had initiated reforms to increase the quorum and supermajority thresholds required for the Constitutional Court to deliberate cases.
The KMT caucus asserts that its proposal seeks to ensure ideological diversity within the court. However, a more straightforward approach to enhance diversity in the composition of justices would be to establish clearer rules for presidential nominations and legislative confirmations. Furthermore, with the terms of seven justices expiring on October 31 last year, the legislature’s failure to confirm replacements will effectively disable constitutional review under the new quorum requirements.
This unfortunate scenario has already become a reality. After the legislature passed the revised CCPA, the KMT caucus rejected all seven justices nominated by President Lai Ching-te. The TPP supported only one nominee, while the DPP backed the remaining six. Deep partisan polarization resulted in none of the nominees being approved. Once the new law takes effect, at least ten justices will be required to deliberate cases, and nine to issue rulings on unconstitutionality. With only eight sitting justices, the Constitutional Court will be unable to review or adjudicate any cases.
This standstill aligns perfectly with the agenda of the opposition-controlled legislature. Until it can secure “non-green” candidates of its preference, the majority appears willing to sacrifice the functionality of one of the three branches of government.
The primary victims of this constitutional crisis are the Taiwanese people. In recent years, over 98 percent of the Constitutional Court’s cases have been individual petitions seeking protection for fundamental rights. The Constitutional Court, as the sole body authorized to exercise constitutional review, serves as the final adjudicator of whether laws comply with the Constitution. Without a functioning Constitutional Court, citizens lose access to timely remedies for constitutional violations, and landmark rulings, such as the one guaranteeing marriage equality, would no longer be possible.
The 2020 revision of the CCPA, which reduced the court’s decision threshold to a simple majority, significantly improved its efficiency, increasing annual rulings from fewer than 10 to as many as 20. So even if new justices are eventually appointed, reinstating an even higher supermajority requirement would reduce the Constitutional Court’s efficiency to pre-2020 levels, severely hindering its ability to protect individual rights.
Moreover, the KMT-led coalition is undermining Taiwan’s institutional system of checks and balances. Over the past year, social protests and efforts by the legislative minority have proven insufficient to stop the majority from enacting problematic legislation. While the executive branch can veto such bills, the legislative majority – holding more than half the seats – can easily override these challenges.
In this situation, the Constitutional Court remains one of the few institutions capable of blocking the implementation of illiberal laws. An independent Constitutional Court is an integral part of Taiwan’s democratic system, and its paralysis marks a deep erosion of Taiwan’s democracy at its core.
Taiwan’s current predicament is eerily similar to Poland’s democratic backslide since 2015. The Law and Justice Party (PiS)-controlled Sejm passed amendments requiring a 13/15 quorum and a supermajority for the Polish Constitutional Tribunal to deliberate cases, even though the tribunal had only 12 sitting judges at the time. This global trend reveals that elected authoritarians view independent courts as intolerable obstacles to their power expansion.
Every year, January 11 is celebrated as Taiwan’s Judicial Independence Day. However, the prospects for honoring this aspiration look grim this year. Observers widely predict that the executive’s attempt to veto the CCPA reforms will fail. The DPP caucus has already announced plans to file a constitutional petition immediately after the veto’s failure. Once again, the nation finds itself relying on the Constitutional Court to find a way to avert another constitutional crisis – this time, its own paralysis.
Former Chief Justice Hsu Tzong-Li once warned that without an independent judiciary, “the line dividing democratic Taiwan and authoritarian regimes will silently dissolve.” Taiwan already faces severe external threats to its sovereignty and democracy. If its major parties, driven by a thirst for power, abandon their commitment to the rule of law and go so far as to undermine constitutional checks and balances despite widespread public opposition, one must ask: Will Taiwan’s democracy survive?
