Recent years have witnessed the reemergence of discussions on Confucian constitutionalism, communitarian constitutionalism, or Asian values. Despite the differences of these concepts, all reject Western liberal constitutionalism, emphasizing that Asian countries should prioritize social and economic rights over civil and political rights. Nevertheless, this dichotomy in fact does not hold in Taiwan and many other East Asian jurisdictions. This chapter suggests that, on the one hand, constitutionalism in East Asia is inevitably a blend of liberal constitutionalism and Confucian constitutionalism. Namely, in East Asia, the differences between democracies and dictatorships in this regard is often a matter of degree, not of kind. On the other hand, human rights are better protected in Taiwan than in most other Asian countries because the progress of human rights takes place concomitantly with the decline of Confucianism.
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Rights Advocacy through Simulation
As a fledgling civic institution in Taiwan, the Constitutional Court Simulation(CCS)has received much attention and interest from the Taiwan Constitutional Court as well as the general public in the recent years by tackling such salient issues as same-sex marriage, death penalty, and transitional justice. This essay analyzes, explains and assesses the workings of the CCS as a moot court education program, a shadow constitutional court, a deliberative forum, and as a new approach to rights advocacy in Taiwan.Though the success of the CCS as a rights advocate would make it more difficult for the CCS to project itself as an impartial shadow court, the CCS enterprise attests to the ingenuity and enthusiasm of those who fight for the liberal progressive causes in the civil society in Taiwan.
Frozen Trials: Political Victims and Their Quest for Justice
Before Martial Law was lifted in 1987, the Legislative Yuan passed the National Security Act prohibiting civilian cases tried in court martial from appealing to ordinary courts. In 1991, the Constitutional Court affirmed this legislation in its notorious J.Y. Interpretation No. 272, indicating that this was a very exceptional case, since the imposition of martial law had been maintained for over thirty-eight years. The stability of the legal system came first, and the Court had to defer to the Legislature’s decision. Thereafter, the government passed a special statute to reimburse the victims or their family members without overruling the original judgments. The government had taken 10,062 cases and issued monetary compensation of over 19.6 billion NTD. However, over the years, the victims and their family members waited for rectified judgments from the courts. The quest for justice, despite the country’s transition to democracy, has been delayed for thirty years. It was only in December 2017, that the Legislative Yuan passed new legislation to uphold the value of transitional justice. This chapter first articulates legal structure of the martial law period and then assesses the contours of the post-authoritarian governments’ endeavor to compensate the victims. Using the cases of the Simulated Constitutional Court, the chapter tries to analyze the critical shortcomings and potential benefits of Taiwan’s model of transitional justice.
Freedom of Expression in Taiwan
The Constitutional Court’s reliance on American theories does not necessarily guarantee free speech at a higher protection level since the Court often appears insensitive to not only a future of innovative communication technology but also the country’s authoritarian past. With regard to the freedom of the media, the majority failed to pay particular attention to the characteristics and significances of respective media in the communication system, not to mention the impact of media convergence, which could subject TV broadcasters to out-of-date restrictions. In addition, although not surprising but definitely dangerous is the Court’s inattention to the unbearable White Terror history in dealing with prior restraint of expression in the 1990s. Fortunately, for Taiwan, an open and plural society with an authoritarian past, the Court has become more cautious and has created the most stringent scrutiny standard for prior restrictions of speech in its latest Interpretation No. 744.
