case concerning the criminal investigation of the president, J.Y. Interpretation
No 627. In dealing with these politically controversial disputes, the court has
resorted to the following strategies.^19
Strategic avoidance
After rounds of revision, the Constitution still lacks clarity regarding the nature of
the system of government: presidential or parliamentary. The constitutional
amendments of the 1990 s adopted a direct presidential election and provided the
president with the power to appoint the premier without legislative confirmation.
At the same time, the Legislative Yuan may vote no confidence in the premier, and
the president may dissolve the legislature should such a vote take place. Yet these
amendments failed to provide a clear division of power between the president, the
premier, and the Legislative Yuan. The lack of clarity has generated institutional
conflict between the president and the Legislative Yuan, which worsened in the
year 2000 with a divided government in which the DPP controlled the executive
but the KMT maintained the legislative majority. Interestingly, in resolving these
institutional conflicts, the Constitutional Court has strategically resorted to prag-
matic solutions without even dealing with the nature of the system of government.
The first such controversy came with the DPP government’s suspension of the
construction of the fourth nuclear power plant, a project initiated during the KMT
administration. The KMT-dominated Legislative Yuan contended that the suspen-
sion was unconstitutional as the power of such policy making resided with the
legislature, to which the premier was made accountable, and even sought to call
for presidential impeachment. The Constitutional Court rendered J.Y. Interpretation
No 520 at the government’s request. Interestingly, the court did not decide or rely on
the nature of the system of government – parliamentary or presidential – as a basis for
its decision. Rather, it stated that elected presidents “may change previously existing
policies or orientation not necessarily consistent with his political views,” while the
legislature still maintained its co-decisional power over major government policies.
The court directed the government to explain to the Legislative Yuan its decision to
suspend the plant construction while compelling the Legislative Yuan to listen and
to formulate a policy solution acceptable to both.^20 In the end, the government and
legislature issued a joint declaration that affirmed the long-term goal of a nuclear-
free homeland while allowing the continuing construction of the power plant.
However, due to the many technical problems, some of which even implicated
alleged wrongdoing and corruption, the construction of the fourth nuclear power
(^19) Concerning strategic judicial responses, see Wen-Chen Chang, “Strategic judicial
responses in politically charged cases: East Asian experiences” ( 2010 ) 8 International Journal
of Constitutional Law 885 (comparing the experiences of Taiwan and South Korea).
(^20) J.Y. Interpretation No 520 ( 2001 ), available atwww.judicial.gov.tw/constitutionalcourt/EN/
p 03 _ 01 .asp?expno= 520.