Civil Constitutionalism (and the lack thereof) in Taiwan

The emergence of populism around the globe mirrors the general distrust and dissatisfaction with the political branches. Notwithstanding the widespread of populism in both old and young democracies, Taiwan seems to be resilient to the pathology of populism, and democracy in Taiwan remains stable. Nevertheless, Taiwan’s democracy is actually built on shaky grounds, an issue that has not received enough attention. This paper suggests that civil constitutionalism, broadly defined, may be a proper response to undergird and further strengthen constitutional democracy in Taiwan. Specifically, this paper will analyze the implementation of civil constitutionalism and the lack thereof in Taiwan from three perspectives: the rigidity of the written Constitution and constitutional amendments, the participation of civil society in political governance, and constitutional review in Taiwan. In all three areas, Taiwan’s constitutional democracy has demonstrated both some strengths as well as weaknesses.

Taiwan, Hong Kong, and the Ambivalent Relationship between Law and Democracy

Hong Kong and Taiwan score high on “rule or law” but diverge on democracy. The “one country, two systems” arrangement for Hong Kong, promising gradual progress toward democracy, and the happenstance of post-colonial Hong Kong’s inherited legality and non-democracy contrast with Taiwan’s concurrent democratization and rising rule of law. The contrasting cases offer potential lessons about the relationship between rule of law and democracy. Taiwan suggests a conventional liberal story: rule of law and democracy go hand in hand, through elective affinity or profound interdependence. If Hong Kong sustains legality without democratization, it challenges the universality of such claims. But if rule of law is eroding, or pressures for democracy persist, Hong Kong may help confirm the conventional wisdom. With its experience with full-fledged democracy and rule of law, Taiwan also provides a case study in another common claim: the inescapability of tensions between rule of law and democracy.

Protest, Law, and Regime Type

Different regimes face distinct political challenges and develop unique measures to manage political crises. Mainland China, Hong Kong and Taiwan have different political systems: China is an authoritarian one party state practicing “democratic dictatorship”; Taiwan is a democracy that entrenches human rights protection and the separation of powers; Hong Kong, as an SAR of China, is a consultative democracy, with entrenched rule of law and judicial independence. It is a free, tolerant, and orderly society struggling for democracy. Between 2013-15 all three experienced similar crises – large scale public protests that were lengthy and highly political, challenging the respective political system. Yet the ways in which law was used and the extent to which the respective leaders have been punished contrasted among the three places, reflecting the differences in regime. This paper explores how courts in different systems treat political challengers, and the implications of those decisions.

Developing a Right to Democracy in International Law: Protection by the Rule of Law?

“We reaffirm that human rights, the rule of law and democracy are interlinked and mutually reinforcing and that they belong to the universal and indivisible core values and principles of the United Nations.” (United Nations Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels (2012)). The United Nations Declaration represents a familiar claim about the relationship between democracy and the rule of law domestically and internationally. However, as Hillary Charlesworth notes, scarce evidence exists for an individual or human right to democracy at international law. Thus there exists no express individual right to democracy for the rule of law to protect or incorporate into international law. This paper examines the problems with, and the possibilities for, developing an international human right to democracy, and its relationship with the rule of law internationally and domestically in the Asian and Australian context.

Criticising the courts: from ‘foreign’ judges to ‘dinosaur’ judges

Court criticism often boils down to clashes between the principles of democracy and the rule of law, but severe criticism may challenge judicial authority and threaten the rule of law. And yet, certain types of criticism are more acceptable than others. This paper argues that collective criticism represents a more acceptable type of condemnation. Here the focus is on disapproval of the ultimate judgement or decision of the court, rather than on the court’s individual members or personal attributes. Collective criticism can push courts to take wider democratic issues into consideration. Such disapproval may even enhance the rule of law, as it brings into a sharper focus the delicate issues surrounding the operation of democracy. Under individual criticism, judgements can be pinned on one or two justices, rather than on the decision of the institution. Further, individual criticism often involves malice against the personal characteristics of judges, thus threatening the rule of law.