Using the Authoritarian Past for Constitutional Interpretation in New Democracies: The Example of the Taiwan Constitutional Court

Shih-An Wang

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Chapter 10 Using the Authoritarian Past for Constitutional Interpretation in New Democracies

The Example of the Taiwan Constitutional Court

In: Comparative Constitutional History

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Shih-An Wang

Shih-An Wang
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Type:: Chapter

Pages:: 332–365

DOI:: https://doi.org/10.1163/9789004523739_012

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Abstract

This chapter examines the use of the authoritarian history of Taiwan in constitutional interpretation by the Taiwan Constitutional Court (TCC). It illustrates how the TCC has shifted from its previous approach of merely disconnecting the present from the past to proactively redressing historical wrongdoings. The chapter argues that this use of history, with the normative values it entails, can play an influential role for constitutional courts in providing aspirational guidance to post-authoritarian constitutional reform. In cases concerning the separation of powers, the TCC has successfully discerned and rejected authoritarian practices in the contemporary era and established democratic constitutional norms in a relatively stable environment. The TCC has also held that certain authoritarian measures have been legitimately necessary in exceptional situations, alleviating legal concerns regarding retrospectivity as well as political crises. A similar tendency can be found in cases concerning human rights protections. As the TCC was previously uncertain regarding the extent to which historical wrongdoings should be reviewed, this issue was left to the political branches. It was not until 2020 that the TCC adopted a more progressive approach to the review of history by upholding the constitutionality of transitional justice legislation, grounded on the fairness of political competition and equal opportunities for the concerned parties. In doing so, the TCC substantially consolidated the values of the liberal democratic constitutional order, which can be of benefit for post-authoritarian political development. Based on these findings, it is necessary for constitutional courts to take history seriously in a way that incorporates the ideals of the desired constitutional values and arrangements whilst viewing local experiences with a critical eye in the light of the distinctive circumstances of post-authoritarian countries.

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Comparative Constitutional History

Volume Two: Uses of History in Constitutional Adjudication

Series: History of European Political and Constitutional Thought, Volume: 10

Cover Comparative Constitutional History

E-Book ISBN:: 9789004523739

Publisher:: Brill

Print Publication Date:: 25 Nov 2022

Subjects

Front Matter

Part 1 Framing the Problem

Part 2 Historical Precedents and Inter-constitutional Interpretation

Part 3 A Matter of Narratives

Part 4 New Democracies and Illiberal Regimes

Back Matter

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Chapter 10 Using the Authoritarian Past for Constitutional Interpretation in New Democracies

The Example of the Taiwan Constitutional Court

Abstract

Citation Info

Share link with colleague or librarian

Comparative Constitutional History

Volume Two: Uses of History in Constitutional Adjudication

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