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Downloaded for Personal Non‐Commercial Research Or Study, Without Prior Permission Or Charge R Huang, Kuan‐Chuan (2018) Judicial supremacy in Taiwan: strategic models and the Judicial Yuan, 1990‐1999. PhD thesis. SOAS University of London. http://eprints.soas.ac.uk/26179 Copyright © and Moral Rights for this thesis are retained by the author and/or other copyright owners. A copy can be downloaded for personal non‐commercial research or study, without prior permission or charge. This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the copyright holder/s. The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the copyright holders. When referring to this thesis, full bibliographic details including the author, title, awarding institution and date of the thesis must be given e.g. AUTHOR (year of submission) "Full thesis title", name of the School or Department, PhD Thesis, pagination. JUDICIAL SUPREMACY IN TAIWAN: STRATEGIC MODELS AND THE JUDICIAL YUAN, 1990-1999 KUAN-CHUAN HUANG Thesis submitted for the degree of PhD 2016 Department of Law SOAS, University of London 2 Declaration for SOAS PhD thesis I have read and understood Regulation 21 of the General and Admissions Regulations for students of the SOAS, University of London concerning plagiarism. I undertake that all the material presented for examination is my own work and has not been written for me, in whole or in part, by any other person. I also undertake that any quotation or paraphrase from the published or unpublished work of another person has been duly acknowledged in the work which I present for examination. Signed: Date: 8-December-2017 3 Аав ээж хоё р минь Шүлгийг Т.Галсан Хөгжимийг Б.Шарав Эрдэнээр эрдэнээр эрдэнээр уйлавч Эргэж олдохгүй ээж минь ээ Алтаар алтаар хайлавч Ахиад заяахгүй аав минь ээ Хүний дайтай явна гэж Хүүдээ итгээрэй ээж минь ээ Олондоо тустай явна гэж Охиноорой бахархаарай аав минь ээ Эрдэнээр эрдэнээр эрдэнээр уйлавч Эргэж олдохгүй ээж минь ээ Алтаар алтаар хайлавч Ахиад заяахгүй аав ээж хоёр минь 4 To Alexander Christoph Fischer Nigel N.T. Li 5 6 ABSTRACT This thesis explores constitutional judicial review in the Republic of China (Taiwan), assessing the expansion of judicial power between 1990 and 1999. The core of this research project focusses on the Council of Grand Justices of the Judicial Yuan, and the ability of these fifteen Justices to impose their collective will upon other branches of government through judicial decisions that sometimes override executive actions and legislative acts. The power of constitutional judicial review has de jure rested exclusively with the Judicial Yuan under Article 78 of the 1947 Constitution of the Republic of China, and the constitutional text places no limitations on the use of such judicial power. On a de facto basis, however, the power of the Judicial Yuan has varied considerably since 1947, setting an interesting research puzzle and inspiring the research questions of this thesis: What are the shifting limitations of judicial power? When do Justices review with deference and what encourages judicial assertiveness? In engaging with these questions, this thesis reconceptualises and contextualises Taiwan’s institutional arrangements for constitutional review through strategic accounts of judicial decision-making and the examination of the role of judicial audiences. Building upon Ginsburg’s seminal study of Taiwanese courts and his diffusion-of-political-power model, the following chapters will extend the study of constitutional judicial review in a new direction. The diffusion of political power through competitive elections only accounts for the strengthening of the power of the Judicial Yuan in comparison to other competitive branches of government as a general trend. It leaves unexplained why the all-important 1990 case – Judicial Yuan Interpretation No. 261 [1990] – precedes democratic transition, and why the practical exercise of judicial power then fluctuates between deference and assertion. In order to 7 understand Judicial Yuan Interpretation No. 261 [1990] as the original constitutional moment of judicial power in Taiwan, and to assess the important subsequent variations within a more general trend of judicial power expansion, this thesis will expand strategic accounts of judicial decision-making into the realm of an alliance between judiciary and public opinion. The interplay between public support for the Judicial Yuan as an indirect enforcement mechanism and the Justices’ strategic alignment with public opinion as a basis for building institutional legitimacy is then further reinforced by the more traditional elements of Chinese legal culture, such as Mencius’ indirect democracy. Evidence for these arguments is offered using a combination of quantitative approaches and a series of interviews, as well as special attention to archival research. These combine to offer the researcher a wealth of new material in support of the key argument that the shift towards judicial supremacy in Taiwan during the 1990s is rooted in the Justices’ ability to decide strategically and align themselves with public opinion. This thesis is therefore original in its empirical impetus and unique as regards the novel pieces of evidence it unearths and analyses, in particular the discovery of a repository of official judicial interviews in the National Central Library of Taiwan. In addition, the theoretical ambition of this thesis combines strategic approaches and the study of judicial audiences to Taiwanese constitutional law for the first time. 8 TABLE OF CONTENTS ABSTRACT 7 TABLE OF CONTENTS 9 LIST OF STATUTORY LEGISLATION 18 LIST OF CASES CITED 21 LIST OF RESOLUTIONS CITED 27 LIST OF FIGURES AND TABLES 28 LIST OF OFFICIAL INTERVIEWS REVIEWED 31 1. – INTRODUCTION 1.1 Background 33 1.2 Taiwan, China and Chinese 40 1.3 Legal Language in Taiwan 41 1.4 Public Opinion 43 1.5 Self-interest and Cultural Bias 50 1.6 The Pursuit of Judicial Self-interest 53 1.7 The Court, Democratic Legitimacy and Public Opinion 59 1.8 Constitutional Judicial Behaviour and Public Opinion 67 1.9 Judicial Power Expansion and Its Limitations 75 1.10 Conclusion 80 2. – THE HISTORY OF THE JUDICIAL YUAN PRE-1990 9 2.1 Introduction 83 2.2 Pre-constitution Period 84 2.3 Dr Carsun Chang’s Constitution of 1947 88 2.4 A Hard Political Decision: Stay or Retreat? 92 2.5 Moving from Nanjing to Taipei 97 2.6 Conclusion: Nomination and Consent 102 3. – METHODOLOGY: RECONSTRUCTING THE JUDICIAL YUAN THROUGH DATA AND ARCHIVES 3.1 Introduction 106 3.2 General Methodology: Single Historical Case Study 107 3.3 General Methodology: Interdisciplinary Analysis 108 3.4 General Methodology: Amended Doctrinal Analysis 111 3.5 Specific Methodology 112 3.5.1 Subjective Judicial Bias and Preferred Position 115 3.5.2 An Unexpected Discovery: The Importance of Archival Studies and the 117 Judicial Yuan’s Oral History Project 3.5.3 Judicial Archives in Taiwan 122 3.5.4 What is New and Original 125 3.6 Sinology and Translation 126 3.7 Conclusion 127 4. – THEORISING JUDICIAL SUPREMACY: A TAIWANESE PERSPECTIVE 10 4.1 Introduction 129 4.2 Public Opinion, Media and the Judicial Yuan 134 4.3 Mendel, Ginsburg and the Judicial Yuan 140 4.4 Modelling the Judicial Yuan 144 4.5 Sun Yat-Sen and Carsun Chang 151 4.6 The Nature of the Judicial Power 155 4.7 Favouring the Guardian of the Constitution Theory 157 4.8 Judicial Power Expansion in Taiwan 163 4.9 Judicial Yuan: Alternative Lawmaker 166 4.10 Conclusion 168 5. – STATISTICS OF THE REPUBLIC OF CHINA 5.1 Introduction 170 5.2 From Media Control to Press Freedom 172 5.3 Legal Education and the Admission to Practice Law 175 5.4 Judicial Yuan: Taiwan’s Constitutional Court 179 5.5 The Judicial Yuan: 1990-1999 185 5.6 The Honourable Justices: 1990-1999 201 5.7 Conclusion 219 6. – A VICTORY FOR SINCERE DECISION-MAKING: INTERPRETATION NO.261 [1990] 6.1 Introduction 221 11 6.2 The Origin 223 6.2.1 The Republic of China’s Perspective 224 6.2.2 Taiwan’s Perspective 226 6.3 Public Opinion 227 6.3.1 Did Taiwan’s Public Opinion Support Democratisation 227 6.3.2 Did Justices Read Public Opinion 229 6.3.3 Conclusion 231 6.4 Theoretical Dilemma Over the Constitution 231 6.4.1 Divided Nation’s Dilemma 232 6.4.2 From Groß-ROC towards Klein-ROC Dilemma 233 6.5 Previous Decisions of the Judicial Yuan 235 6.5.1 Judicial Yuan Interpretation No.31 [1954] 236 6.5.2 Judicial Yuan Interpretation No.150 [1977] 238 6.6 Instrument of Appeal 239 6.6.1 The Unusual Appellant 240 6.6.2 The Promoters 241 6.6.3 The Claim 243 6.7 Decision 245 6.7.1 A Clausula Rebus Sic Stantibus Decision 245 6.7.2 An Astonishing Constitutional Court Order 247 6.7.3 The Only Dissenting Opinion 249 6.8 Responses 251 6.8.1 Political Responses 251 6.8.2 Social Responses 253 6.9 Judicial Self-interest 256 12 6.9.1 Did Justices Decide Strategically? 256 6.9.2 Did Judicial Power Expand Thereafter? 258 6.10 Conclusion 260 7. – JUDICIAL POWER EXPANSION THROUGH ADVISORY OPINIONS AND STATE ORGAN CASES 7.1 Introduction 263 7.2 The Role of the Judicial Yuan in State Organ Litigation 266 7.3 Statistical Insights 269 7.3.1 Separation of Powers Games 270 7.3.2 Advisory Opinions: Intra-branch Conflicts 271 7.3.3 Advisory Opinions: Non-partisan Cases 273 7.4 Separation of Powers Games 274 7.4.1 The Legislative Yuan 275 Judicial Yuan Interpretation No.461 [1998] 276 Judicial Yuan Interpretation No.435 [1997] 279 Judicial Yuan Interpretation No.325 [1993] 280 7.4.2 The Executive Yuan 283 Judicial Yuan Interpretation No.307 [1992] 284 7.4.3 The Judicial Yuan 285 Judicial Yuan Interpretation No.371 [1995] 286 7.5 Intra-branch Conflicts 287 Judicial Yuan Interpretation No.342 [1994] 287 Bone of Contention: Democratisation 288 13 Fact 289 A – Instrument of Appeal: New Party’s Proposal 290 B – Instrument of Appeal: Democratic Proposal 291 C – Instrument of Appeal: Nationalist Proposal 292 Decision 293 7.6 Non-partisan Cases 295 Judicial Yuan Interpretation No.470 [1998] 296 Judicial Yuan Interpretation No.365 [1994] 296 Judicial Yuan Interpretation No.259 [1990] & No.260 [1990] 296 7.7 Conclusion 297 8.
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