Constitutionalism in Asia in the Early Twenty-First Century

(Greg DeLong) #1

sexual exploitation, guaranteed by the CRC, may provide for a constitutional basis


to restrict free speech when reviewing a law criminalizing the dissemination of


materials that seduce anyone, including children, into engaging in unlawful sexual


transactions. The court argued that the Constitution’s guarantee of free speech was


not absolute, and that the legislature could impose adequate restrictions by


enacting clear and unambiguous laws. Since protecting a child from engaging in


any unlawful sexual activity is a universally recognized fundamental right and of


significant public interest, the purpose of the reviewed Act, to prevent and elimin-


ate the circumstances where children and juveniles were treated as sexual objects,


must be deemed rational and legitimate.^53


Except for the three typical functions, judicial references also provide alternative


functions of public policy. As recent cases in the Constitutional Court demon-


strated, one of the alternative functions of reference to international human rights


law is to provide the benchmark for further legislative revision or policy change.


For example, in both J.Y. Interpretation No 549 and J.Y. Interpretation No 578 , the


court examined the Labor Insurance Act and the Labor Standards Act and,


having found the Acts constitutional, advised the government to overhaul the


entire statutory regime with relevant international labor conventions. In J.Y. Inter-


pretation No 549 , the court requested that “an overall examination and arrange-


ment, regarding the survivor allowance, insurance benefits and other relevant


matters, should be done in accordance with the principles of this Interpretation,


international labor conventions and the pension plan of the social security


system.”^54 Similarly in J.Y. Interpretation No 578 , the court advised the government


to conduct a comprehensive examination of the current scheme regarding labor


retirement payment and requested that “the provisions of international


labor conventions and the overall development of the nation shall also be taken


into account.”^55


Global convergence of institutional arrangements


The third feature of transnational constitutionalism has to do with the triumph of


constitutionalism at the end of the last century, and the impact brought about by


globalization. Aside from traditional arrangements such as bills of rights and the


separation of powers, new institutions particularly responsible for guarding consti-


tutions such as constitutional courts, human rights commissions, and independent


auditors have all become common features of new transnational constitutionalism.


(^53) J.Y. Interpretation No 632 ( 2007 ), available atwww.judicial.gov.tw/constitutionalcourt/en/
p 03 01 .asp?expno= 632.
(^54) J.Y. Interpretation No 549 ( 2002 ), available atwww.judicial.gov.tw/constitutionalcourt/en/
p 03
01 .asp?expno= 549.
(^55) J.Y. Interpretation No 578 ( 2004 ), available atwww.judicial.gov.tw/constitutionalcourt/en/
p 03 _ 01 .asp?expno= 578.


A decade of changing constitutionalism in Taiwan 159

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