have complemented – or even been substituted for – domestic constitutions.
4
Through the developments of both transitional and transnational constitutional-
ism, the understandings of constitutionalism have been simultaneously altered,
enriched, and seriously challenged in terms of accountability, democratic deficit,
and rule of law.^5
Both transitional and transnational constitutionalism has occurred in East Asia.^6
Gradually after World Wariiand more rapidly in the late 1980 s, Japan, South
Korea, and Taiwan respectively have transformed into vibrant democracies with a
distinctive model of constitutionalism, neither merely mirroring Western standard
constitutionalism nor squarely fitting into Asian stereotypical values.^7 The features
of transitional and transnational constitutionalism have been in varying degrees
embodied in the course of these constitutional developments. This chapter
addresses these transitional and transnational aspects of constitutional development
in Taiwan as set during the first decade of the twenty-first century.
Taiwan was already a vibrant constitutional democracy before entering into
this millennium, having displayed many of the features of transitional constitutional-
ism.
8
The martial-law decree was lifted in 1987. The first parliamentary election was
held in 1992 , and the first direct presidential election in 1996. The 1947 Republic of
China (ROC) constitution, which was originally adopted in mainland China, has
been revised seven times since the beginning of the 1990 s.
9
Concurrently, the
Constitutional Court (also known as the Council of Grand Justices), despite being
an old institution established in 1948 , made itself into a strong functioning judicial
institution and produced a record in which about 30 to 40 percent of challenged
legislative or administrative acts were ruled unconstitutional.
10
Notwithstanding the successful democratic transition in the 1990 s, the first
decade of the new millennium witnessed Taiwan’s first divided government, which
led to fierce political confrontation for eight years. These altercations were due to
(^4) Yeh and Chang, “Transnational constitutionalism,” 111 – 14.
(^5) Yeh and Chang, “Transitional constitutionalism,” 170 – 5 ; Yeh and Chang, “Transnational
constitutionalism,” 111 – 24.
(^6) Jiunn-rong Yeh and Wen-Chen Chang, “The emergence of East Asian constitutionalism:
features in comparison” ( 2011 ) 59 American Journal of Comparative Law 805 (analyzing
East Asian constitutionalism through the lens of transitional and transnational constitu-
tionalism, as well as Asian value discourse).
(^7) Ibid.
(^8) Ibid., 835 – 7.
(^9) For a more detailed discussion of these constitutional revisions, and the developments of
constitutional change in Taiwan after democratization, see Jiunn-Rong Yeh, “Constitutional
reform and democratization in Taiwan: 1945 – 2000 ,” in Peter Chow (ed.),Taiwan’s Modern-
ization in Global Perspective(Westport, CT: Praeger Publishers, 2002 ), pp. 47 – 77.
(^10) Wen-Chen Chang, “The role of judicial review in consolidating democracy: the case of
Taiwan” ( 2005 ) 2 Asia Law Review 73. See also Tom Ginsburg,Judicial Review in New
Democracies: Constitutional Courts in Asian Cases(New York: Cambridge University
Press, 2003 ).