A political storm in Taiwan’s Legislative Yuan is threatening the nation’s democracy. In recent months, a constitutional court reform led by Kuomintang (KMT) legislator Weng Hsiao-ling has ignited an unprecedented outcry. Over 300 lawyers, including a former Justice appointed by KMT President Ma Ying-jeou, have taken to the streets in protest. Civil society has also mobilized, organizing waves of rallies to oppose the changes. Despite widespread opposition, the KMT and its ally, the Taiwan People’s Party (TPP) – two opposition parties that command a legislative majority – still pushed the controversial bill through at the end of last year.
If implemented, the new Constitutional Court Procedure Act (CCPA) will leave Taiwan’s Constitutional Court – currently down to just eight active justices – incapable of deliberating cases or declaring legislation unconstitutional due to a lack of quorum. The looming paralysis of the Constitutional Court signals the gravest threat Taiwan’s democracy has faced in recent years.
A Targeted Attack on the Court
This assault on the Constitutional Court is no accident. As legal scholars Tom Ginsburg and Aziz Huq observed, assertive constitutional courts often become “attractive targets for the forces of erosion.” The KMT’s hostility toward the court stems largely from its previous failure to expand legislative power, which was blocked by judicial checks in late October last year.
Since 2016, the KMT has lost three consecutive presidential elections. However, in early 2024, it reclaimed its position as the largest party in the legislature and formed a majority with the TPP. Upon taking office, the KMT-led coalition swiftly enacted reforms to expand the legislature’s investigatory and oversight powers. The Constitutional Court, however, intervened and struck down these laws, ruling that they infringed on individual rights and violated the principle of separation of powers.
While the Constitutional Court’s ruling was consistent with its precedents, the KMT blamed its defeat on the “greening” of the court, as all 15 sitting justices had been nominated by the ruling Democratic Progressive Party (DPP). In fact, just days before the ruling, the KMT had already begun pushing reforms to raise the quorum and supermajority thresholds required for the Constitutional Court to deliberate cases.
The KMT caucus claims its proposal aims to ensure ideological diversity within the court. However, a simpler way to enhance diversity in the composition of justices would be to establish clearer rules for presidential nominations and legislative confirmations. Moreover, with the terms of seven justices expiring on October 31 last year, the legislature’s failure to confirm replacements will effectively cripple constitutional review under the new quorum requirements.
This unfortunate scenario has already become 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, however, 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 paralysis 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.
Taiwanese People Are Paying the Price
The biggest losers in this constitutional crisis are the Taiwanese people. Over the past few years, more than 98 percent of the Constitutional Court’s cases have been individual petitions seeking protection for fundamental rights. As the sole body authorized to exercise constitutional review, the Constitutional Court serves as the final arbiter 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.
It is worth noting that the 2020 revision of the CCPA, which lowered the court’s decision threshold to a simple majority, significantly improved its efficiency, increasing annual rulings from once 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.
Crumbled Checks and Balances
Worse still, the KMT-led coalition is dismantling 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. Moreover, referendums to overturn legislation are time-consuming and often unsuccessful, and Taiwan’s Constitution does not authorize the executive to dissolve the legislature and call for new elections.
In this context, the Constitutional Court remains one of the few institutions capable of blocking the implementation of illiberal laws. The minimum core of democracy includes meaningful checks and balances on the exercise of political power, and an independent Constitutional Court is an integral part of Taiwan’s democratic system. The paralysis of the court, therefore, marks a profound erosion of Taiwan’s democracy at its very foundation.
Taiwan’s current predicament is eerily reminiscent of 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. Across the globe, elected authoritarians seem to view independent courts as intolerable obstacles to their expansion and entrenchment of power.
Will Taiwan’s Democracy Survive?
Every year, January 11 is marked 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?