Judges as Discursive Agent: An Empirical Study on the Use of Foreign Laws by the Constitutional Court of Taiwan

One of the most vibrant constitutional democracies in East Asia, Taiwan has developed strong constitutionalism and judicial review since the late 1980s. The Constitutional Court (also known as the Council of Grand Justices) was created in 1948, and has become one of the oldest constitutional courts in East Asia and even beyond. The Court has provided effective checks and balances with the exercise of legislative and executive powers, and been praised as a successful guardian of individual rights and freedoms. Each year the Court renders about 20 to 30 decisions (also known as interpretations), half of which are invalidations of statutes or regulations found inconsistent with the Constitution. In 2000, the Court even made a decision in which constitutional amendments were declared unconstitutional and rendered null and void.

Despite an active and longstanding judiciary, Taiwan’s Constitutional Court has not often relied on or directly referred to foreign legal authorities in its own decisions. Interestingly however, beginning in the late 1980s, foreign or even international legal sources became more and more visible in its decisions, and especially so in the separate opinions issued by individual justices.