the historical change of government powers in which the long-time ruling party,
the Nationalist Party (Kuomintang, KMT), lost the presidential election in 2000
and again in 2004 to the Democratic Progressive Party (DPP) while retaining a
persistent majority in the legislature.^11 This divided government and the resulting
political conflicts between the executive, led by the DPP, and the legislature,
controlled by the KMT, inevitably demanded dispute resolution by the Consti-
tutional Court. Consequently, unconventional constitutional adjudication became
the most salient feature highlighting constitutional development in the first decade.
Meanwhile, the development of transnational constitutionalism was at its zenith
over the last ten years.^12 On November 11 , 2001 , Taiwan was granted accession to
the World Trade Organization (WTO), and entry became effective on January 1 ,
2002 .In 2007 , accession to the Convention on Elimination of All Forms of
Discrimination against Women (CEDAW) was passed by an overwhelming parlia-
mentary majority and subsequently announced by the president. The instrument of
accession was expectedly rejected by the United Nations. But the government
voluntarily complied and released the first state report in March 2009. In the same
month, the government also ratified the International Covenant on Civil and
Political Rights (ICCPR) and the International Covenant on Economic, Social
and Cultural Rights (ICESCR). This time, the legislature passed an Implementa-
tion Act to make all of the rights enshrined in the two covenants directly applicable
in the domestic legal system. Following this example, an Implementation Act for
CEDAW was also enacted, effective as of January 1 , 2012.
Against these transitional and transnational backdrops, this chapter sets out to
analyze the first decade of Taiwan’s changing constitutionalism. In what follows,
the constitutional developments, in the light of respective features in transitional
and transnational constitutionalism, are discussed with critical evaluations on
prospects and challenges that may lie ahead for the second decade.
ii. transitional perspective
In transitional constitutionalism, three distinctive features are observed.^13
First, transitory constitutional measures are often undertaken in preparation for,
complementary with, or even in lieu of formal constitution-making or revisions.
(^11) Jiunn-Rong Yeh, “Presidential politics and the judicial facilitation of dialogue between
political actors in new Asian democracies: comparing the South Korean and Taiwanese
experiences” ( 2010 ) 8 International Journal of Constitutional Law 911 at 913.
(^12) Wen-Chen Chang, “The convergence of constitutions and international human rights:
Taiwan and South Korea in comparison” ( 2011 ) 36 North Carolina Journal of International
Law and Commercial Regulation 593 ; Wen-Chen Chang, “An isolated nation with global-
minded citizens: bottom-up transnational constitutionalism in Taiwan” ( 2009 ) 4 ( 3 )
National Taiwan University Law Review 203.
(^13) Yeh and Chang, “Transitional constitutionalism”, 150 – 7.