A Decade of Changing Constitutionalism in Taiwan: Transitional and Transnational Perspectives

As constitutionalism has swept the world since the late 1980s, the understanding of constitutionalism, particularly of the functions of constitutions, has substantially changed. Elsewhere we have identified these changed features and functions of constitutionalism as transitional and transnational constitutionalism. Like us, the majority of constitutional scholars have pointed to these profound changes of constitutionalism and concluded that the waves of democratic transition demonstrated most recently by the Arab Spring and the globalization that began with trade and extended beyond served as the two driving forces. In transitional constitutionalism, the functions of constitutions have extended from merely restraining government powers to providing guidance for institutional reforms. In transnational constitutionalism, international norms have crossed sovereign boundaries and have complemented – or even been substituted for – domestic constitutions. Through the developments of both transitional and transnational constitutionalism, the understandings of constitutionalism have been simultaneously altered, enriched, and seriously challenged in terms of accountability, democratic deficit, and rule of law. Both transitional and transnational constitutionalism has occurred in East Asia. Gradually after World War ii and more rapidly in the late 1980s, Japan, South Korea, and Taiwan respectively have transformed into vibrant democracies with a distinctive model of constitutionalism, neither merely mirroring Western standard constitutionalism nor squarely fitting into Asian stereotypical values. The features of transitional and transnational constitutionalism have been in varying degrees embodied in the course of these constitutional developments. This chapter addresses these transitional and transnational aspects of constitutional development in Taiwan as set during the first decade of the twenty-first century.