Constitutionalism in Asia in the Early Twenty-First Century

(Greg DeLong) #1

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.


146 Yeh and Chang

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