After Courting Death: Taiwan’s (Rump) Constitutional Court Caught in the Political Crossfire

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Ming-Sung Kuo & Hui-Wen Chen

University of Warwick

Introduction: A Rump Court in a Dilemma

As it stands, the Taiwan Constitutional Court (TCC) is a rump court with its future hanging in the air. After seven Justices – including the Chief Justice and his deputy – stepped down on 31 October 2024 at the end of their eight-year term, the TCC was left with a bare majority of its full membership of 15 Justices. Caused by the gap between retirement and replacement, the composition shortfall in the TCC is not unprecedented in Taiwan. And, the eight-member TCC has remained a functioning court under the Constitutional Court Procedure Act (CCPA) of 2019 until recently (see the explanation below): the TCC is quorate with two-thirds of the total number of the sitting Justices present (article 30). If need be, it could still strike down legislation by five Justices – one more than half of the total number of the sitting Justices – in a quorate court of six – at least according to the law on the books.  

Yet, the eight-Justice TCC still functioning under the 2019 quorum rule is anything but business as usual and no longer a sure thing. First, the TCC’s rump status is not only a result of the departure of seven Justices. Such a judicial state of exception has been prolonged after, on 24 December 2024, the opposition-controlled Legislative Yuan (Taiwan’s parliament, hereinafter LY) rejected all seven of the potential new TCC Justices nominated by the President. Notably, ostensibly to prevent the TCC running amok, the LY passed an amendment to the 2019 CCPA on 20 December, stipulating, inter alia, a new quorum for the TCC: only 10 Justices would make a quorate court. With the enactment of the amendment bill following presidential promulgation on 23 January 2025 – less than two days before the lunar new year recess – the rump TCC’s continuing operation is now called into doubt – at least until two of its current vacancies are filled. Yet, even before the amendment was duly enacted, the parliamentarians of the ruling Democratic Progressive Party (DPP), apparently  inspired (here and here) by Poland’s as well as South Korea’s recent experiences, had petitioned the TCC to declare it unconstitutional, despite the 2019 CCPA’s provision that the TCC’s jurisdiction of abstract norm control applies to laws, not legislative bills (article 47). Thus, to strike down or not to strike down is the ultimate dilemma facing the rump TCC. If it defies the new quorum provision and meets to strike down the controversial CCPA amendment under the 2019 CCPA – all of whom were nominated by a DPP President – the TCC would likely deepen public concerns over the way it exercises jurisdiction, casting further doubt on its legitimacy. If it sits idly by, the rump court would only see constitutional jurisdiction being brought to a halt by legislation.

In this post, we aim to shed light on how the TCC ended up in such a limbo. We shall argue that the TCC is caught in the political crossfire as it tried to be both a progressive and popular court – and eventually failed at both – amid Taiwan’s divisive and increasingly populist politics. Before we dig into the nature of the TCC’s current sorrow, we need to see how the TCC got itself into the troubled waters of partisan politics with its failed judicial statesmanship in the Death Penalty Case. 

The Death Penalty Case: A Tale with Two Endings    

As we have commented elsewhere, the progressive TCC made a Solomonic move when it handed down judgment in the Death Penalty Case on 20 September 2024. On the one hand, it upheld the constitutionality of statutory provisions allowing for capital punishment, much to the disappointment of the abolitionists and human rights advocates; on the other hand, it mandated miscellaneous procedural requirements for the imposition of the death penalty in individual cases on grounds of the ‘strictest requirement of due process’. With restrictions such as the prohibition of imposing or executing death sentences where those being tried for or having received a death penalty sentence are suffering from mental disorders or deficiencies, the TCC was seen as rendering virtually inoperable statutory provisions allowing for capital punishment. 

At first glance, the TCC, with its Solomonic judgment, seemed to appease the public who had indicated strong support for the death penalty in opinion polls, while maintaining its progressive and reform stance and answering human rights advocates’ calls for phasing out the death penalty. In this way, the TCC – comprising 15 DPP President-nominated Justices – further pointed the Government of the once abolition-leaning DPP to a safe way to navigate the contentious death penalty issue in Taiwan and helped to avert the grave consequence of a mass execution and the ensuing international condemnation had the TCC not prescribed procedural requirements when upholding the constitutionality of death penalty. Yet, seen in this light, the TCC was bitterly criticized by opposition politicians for defying public opinion in the immediate aftermath of the Death Penalty Case. Angered by the perceived death blow the TCC delivered to the death penalty, the LY’s opposition majority took the measures described above: introducing various legislative bills aimed at constraining the TCC’s power to strike down legislation, culminating in the impugned CCPA amendment, and rejecting the President’s seven nominees for the TCC vacancies (for their sympathy with the abolition movement, among other reasons). The TCC’s rump status seems to be the price the Justices paid for their implicit support for the abolition cause.

Yet on 16 January 2025, five months after the TCC delivered judgment in the Death Penalty Case, the Minister of Justice ordered Taiwan’s first execution in five years, contradicting the opposition’s allegation and public perception that the TCC had sentenced death penalty to death. Notably, the Minister signed the execution order without giving the convict and his family much notice. In contrast to civil society groups’ condemnation of such a stealthy execution, the DPP President further lent support to the Government’s decision on grounds that the TCC had upheld the constitutionality of death penalty. As a result, the Death Penalty Case is far from an instance of the TCC’s progressive intervention in Taiwan’s struggle for the abolition of the death penalty. Rather, it proves that the TCC’s effort to persuade has failed. The Death Penalty Case neither persuades the public, nor convinces politicians – especially the President from the once abolition-leaning DPP and his Government – of the moral repugnance of capital punishment. 

In attempting to appease the public while preventing international condemnation of the Government and maintaining its progressive reform position, the TCC stepped into the uncharted water of judicial regulation of capital punishment in the hope of moving Taiwan towards abolition in its own way. Instead of limiting itself to constitutional interpretation, the TCC deviated to judicial management of procedural requirements for death penalty. The Death Penalty Case thus gives expression to the Justices’ attempted lawyer-statesmanship in a hard case. But the reaction of the public, the parliamentarians, and the Government together indicate that the TCC has failed to win popular or political support for its judicial lawmaking on the death penalty. In trying to be both popular and progressive, the TCC has instead fallen prey to Taiwan’s dysfunctional party politics.

Countermajoritarian Court vis-à-vis Divided Government   

As noted above, the TCC’s rump status and the looming suspension of constitutional jurisdiction in Taiwan result from the political reaction to the Death Penalty Case. Thus viewed, the TCC’s current sorrow seems to be a result of Taiwan’s politics of capital punishment. Yet this only tells half the story, leaving out the TCC’s last major decision before the seven outgoing Justices left the bench: the Limits of the Legislative Power Case.

In the Limits of the Legislative Power Case – issued on 25 October 2024, less than a week before the seven Justices’ departure – the TCC essentially rendered defunct an opposition-proposed amendment of the legislation governing the exercise of the legislative power. Long story short, following the electoral victory in January 2024, the majority opposition pushed through this amendment that controversially invested the LY with broad investigative powers – further buttressed by criminal punishment for contempt of Parliament – despite strong protest from the newly elected President and his DPP Government. The Limits of the Legislative Power Case dealt a death blow to the opposition’s signature legislative architecture that would enable the LY to assert powers vis-à-vis the executive department.

Without diving into technicalities, the Limits of the Legislative Power Case marks the TCC’s retreat from its jurisprudence that has lent constitutional support for better checks and balances through more legislative scrutiny of the executive power. Sticking to the original ‘five-power scheme’ of the 1946 Republic of China Constitution, the TCC not only struck down statutory provisions that would lead to legislative self-aggrandizement. It further ruled that parliamentary investigation directed by the Control Yuan – which was reconfigured as an appointed body by the President with legislative consent in 1993 – could not be constitutionally carried out by the LY. Instead of giving teeth to the LY’s investigative function as recognized in case law, the TCC essentially hollowed out the LY’s investigative role vis-à-vis the Government’s affairs.

Exigencies of space preclude detailed treatment of the TCC’s reasoning in the Limits of the Legislative Power Case. For present purposes, suffice to note that behind the smokescreen of the politics of capital punishment created by the Death Penalty Case is the power struggle resulting from divided government that not only eludes judicial arbitration but eventually engulfs the constitution’s guardian. Frustrated by the TCC’s perceived alignment with the executive power in the Limits of the Legislative Power Case at the cost of the LY’s effort to rebalance the separation of powers, the opposition responded with shots across the TCC’s bow. Riding the populist wave stirred by the Death Penalty Case, the opposition-controlled LY redirected its rebalancing effort at the TCC, on the one hand, with the impugned CCPA amendment. On the other, it continued its assertion of power vis-à-vis the executive department in rejecting the President’s judicial nominees on grounds of giving voice to the public who finds ultimate reassurance in capital punishment as a crime deterrent. To the public, the Death Penalty Case betrays the TCC’s countermajoritarian character. Once the TCC is seen as countermajoritarian, its intervention in the struggle between the executive and legislative powers in the Limits of the Legislative Power Case is easily portrayed as a result of choosing sides in the face of divided government instead of a function of defending the constitutional separation of powers. Caught in the political crossfire, the TCC turns out to be a pawn of the political branch.       

Concluding Thoughts

Courting the death penalty by upholding its constitutionality while mandating miscellaneous procedural requirements, the TCC has made a tragic choice for itself as its Solomonic judgment failed to persuade. After the Death Penalty Case, the TCC lost popularity among the people. Intervening in the Limits of the Legislative Power Case in the final days of the outgoing seven Justices then set the stage for the TCC barely functioning as a rump court. This is the TCC’s current sorrow.  

Now, brought to the executive-legislative showdown on the contentious CCPA amendment, the rump TCC is indeed on the brink of crisis. Yet, despite some commentary, the TCC today is a world apart from the battered Polish Constitutional Tribunal in 2015-16. To strike down the impugned legislation may only help turn the crisis in the making into reality. As discussed above, the looming crisis over the TCC is a result of Taiwan’s dysfunctional party politics. The rump TCC does not hold the key to preventing the political crisis from degenerating into a constitutional crisis. Holding constitutional powers over judicial appointment, the President and the LY must work together to solve the political crisis.

Ming-Sung Kuo is a Reader in Law at the University of Warwick, UK.

Hui-Wen Chen is a research assistant at the University of Warwick, UK.

Suggested citation: Ming-Sung Kuo and Hui-Wen Chen, ‘After Courting Death: Taiwan’s (Rump) Constitutional Court Caught in the Political Crossfire’, IACL-AIDC Blog (4 February 2025) After Courting Death: Taiwan’s (Rump) Constitutional Court Caught in the Political Crossfire — IACL-IADC Blog