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9 - Judicial Review of Constitutional Amendments: Taiwan

from IV - Constitutional Adjudication and Interpretation

Published online by Cambridge University Press:  17 February 2022

David S. Law
Affiliation:
University of Virginia
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Summary

Scholars frequently distinguish between “hard” and “soft” forms of judicial review: “hard” review gives courts the final say on constitutional questions, while “soft” review attempts to strike a balance between judicial and legislative supremacy by giving the legislature the ability to override or set aside what the courts have done. By itself, however, the hard/soft distinction captures neither the degree of finality nor the ultimate impact of judicial review. On the one hand, even in systems of nominally hard review, the government usually retains the ability to effectively override the courts via constitutional amendment. On the other hand, a small but growing number of courts – the Taiwanese Constitutional Court among them – have claimed the power to invalidate constitutional amendments as unconstitutional. Using Taiwan as illustration, this chapter highlights three factors that must be considered in evaluating the extent to which courts have the last word on constitutional matters. First is the formal legal effect of the decision (for example, whether a decision has suspended effect or is valid inter partes rather than erga omnes). Second is the ease with which judicial decisions can be formally overridden or set aside (as in the form of legislative override or constitutional amendment). Third is the extent to which judicial decisions require cooperation and implementation by other institutions of government in order to have practical effect.

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Publisher: Cambridge University Press
Print publication year: 2022

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References

Primary Sources

Halmai, Gábor, ‘Judicial Review of Constitutional Amendments and New Constitutions in Comparative Perspective’ (2015) 50(4) Wake Forest Law Review 951.Google Scholar
Jacobsohn, Gary Jeffrey, ‘An Unconstitutional Constitution? A Comparative Perspective’ (2006) 4 International Journal of Constitutional Law 460.CrossRefGoogle Scholar
Roznai, Yaniv, Unconstitutional Constitutional Amendment: The Limits of Amendment Powers (Oxford University Press, 2017), chs. 12, 78.Google Scholar

Secondary Sources

Ginsburg, Tom, ‘Constitutional Choices in Taiwan: Implications of Global Trends,’ in Society, Taiwan Law (ed.), 主權、憲法與台灣的未來 [Sovereignty, the Constitution, and the Future of Taiwan] (Angle Publishing, 2006), available at ssrn.com/abstract=877154.Google Scholar
Kuo, Ming-Sung, ‘Moving Towards a Nominal Constitutional Court? Critical Reflections on the Shift from Judicial Activism to Constitutional Irrelevance in Taiwan’s Constitutional Politics’ (2016) 25(3) Washington International Law Journal 597641.Google Scholar
Yeh, Jiunn-rong, The Constitution of Taiwan: A Contextual Analysis (Hart, 2016).Google Scholar

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