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Moving towards a nominal constitutional court? Critical reflections on the shift from judicial activism to constitutional irrelevance in Taiwan’s constitutional politics
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Kuo, Ming-Sung (2016) Moving towards a nominal constitutional court? Critical reflections on the shift from judicial activism to constitutional irrelevance in Taiwan’s constitutional politics. Washington International Law Journal, 25 (3). pp. 597-641. ISSN 2377-0872.
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Official URL: http://hdl.handle.net/1773.1/1631
Abstract
The Taiwan Constitutional Court (TCC) has been regarded as a central player in Taiwan’s transition to democracy in the late twentieth century. Self-transforming from a rubberstamp under the authoritarian regime into a facilitator of political dispute settlement, the TCC channelled volatile political forces into its jurisdiction. Thanks to the TCC’s judicial activism, the judicialization of constitutional politics was characteristic of Taiwan’s democratization in the last two decades of the twentieth century. In the TCC scholarship is the proposition that the TCC has continued to play the pivotal role in Taiwan’s constitutional politics in the twenty-first century. Taking issue with this popular view, this Article focuses on the TCC case law in the twenty-first century and suggests that Taiwan’s constitutional politics has moved in the direction of dejudicialization as the TCC has gradually turned away from judicial activism in the face of escalating constitutional conflicts. With the TCC retreating from constitutional politics, I argue that its constitutional jurisdiction is becoming nominal while the Constitution is losing its grip on politics again.
Item Type: | Journal Article | ||||||||
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Divisions: | Faculty of Social Sciences > School of Law | ||||||||
Journal or Publication Title: | Washington International Law Journal | ||||||||
Publisher: | School of Law, University of Washington | ||||||||
ISSN: | 2377-0872 | ||||||||
Official Date: | 2016 | ||||||||
Dates: |
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Volume: | 25 | ||||||||
Number: | 3 | ||||||||
Page Range: | pp. 597-641 | ||||||||
Status: | Peer Reviewed | ||||||||
Publication Status: | Published | ||||||||
Access rights to Published version: | Restricted or Subscription Access | ||||||||
Description: | This Article is based on part of the result of my research project entitled “The Rise and Fall of Juristocracy in Taiwan: Lessons from the Role of the Taiwan Constitutional Court in Managing the Jurisdictional Conflict between the Political Departments, 1948-2012” funded by the Chiang Ching-kuo Foundation for International Scholarly Exchange (Project Number: RG001-U-12; Warwick Project Code: R.LAAA.3043). |
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Date of first compliant deposit: | 9 August 2017 | ||||||||
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Open Access Version: |
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