One of the important element of constitutionalism is judicial review. That is, the Court exercise the power to see whether a piece of legislation or government action is unconstitutional because it violated the constitutional principle or infringe upon basic rights guaranteed by the constitution. Judicial review is such an important function of the court that constitution build up to protect the independence of the court. But of course, different country, different jurisdiction, different constitutional democracy may come up with different way to do judicial review. Although they are still country they don't have judicial review impress. But here in Taiwan, judicial review is such an important function of the court, and also in Taiwan, we have grand justices to do judicial review on daily basis. The court has function so well that the number of constitutional interpretation rendered by court has reached 795 over last several decades. The court has been receiving petitions from the government agency, from local governments, from individual, from groups, from the legislators, or even from the judge in the lower court for constitutional interpretation. The first and the second constitutional interpretation was render in China when the council grand justices was still in Nanjing, and then after that, when they moved to Taiwan and they began to have number three, number four, and up to 795 as of today. There are a couple of salient features of Taiwan's Constitutional Court. Well, the most obvious one is the name of the decision is numbered. We know that interpretation number 748, that's for same-sex marriage. Whereas in another jurisdiction you may see Marbury versus Madison, A versus A, or thematic name like same-sex marriage case. But here in Taiwan is very unique and lots of friends in the area of constitutional law, they like to say, " Well, you've got lots of numbers to talk about." Indeed, yes, we've got lots of numbers like 261, very important one, 31 that we just mentioned before. This is one of the salient features, and also Constitutional Court is composed of 15 justices, maybe a little bit more than most about a country or the jurisdiction, as most of the other constitutional courts they have nine justices. Let me just mention in this way. In Asia, for example, there are five constitutional courts from North, Mongolian constitutional court, Korean constitutional court, Taiwan, and then Thailand Constitutional court and Indonesian Constitutional Court. Among these five Constitutional Court, Taiwan's constitutional court stand out. We say is a unique feature. Number 1, you've got many justices, whereas others are all nine justices. Taiwan's Constitutional Court got 15 justices. In the past, there were 17 justices. Number 2, all other Constitutional Court was appointed through the way of separating into three groups. The President nominate one-third, and then the Congress nominate one-third, and the judiciary, supreme court or the judiciary nominate one-third. Taiwan is unique in this way. Taiwan, the appointment process is that the president appoint all. Then the congress approved all. That means this is the power enjoyed by the President and the Congress. This is also unique in some way. Now only that our Taiwan's Constitutional Court enjoy a very interesting power that is to have the unified statutory interpretation. That is, while others may have a different way of interpreting the statute, the Constitutional Court of Taiwan can have a unified statutory interpretation. Then there are also other features. That is, it takes a super-majority, to come up with some constitutional resolution two-third vote is required to pass a constitutional interpretation. Before that, the threshold was three-fourth. Many constitutional scholars, including myself, argue at the time that legislative enactment about the ceiling should be unconstitutionally infringing upon the judicial power. Now, third requirements, is that too much? There are also other jurisdictions that use pretty much the same thing, like South Korean Constitutional Court also require about two-thirds of the board. But it will be an issue for future deliberation. But right now the system is like this. In addition to that, we also found out that in terms of judicial strategy, Taiwan's Constitutional Court is also unique in many ways. But before we talk about those individual judicial strategies, let's mention one, particularly contextual findings about Taiwan's Constitutional Court. That is, the court actually transforms itself from a rubber stamp to a guardian of the constitutional value and that transformation has been amazing. It used to be the rubber stamp of the strong man legitimizing lots of authoritarian rules. When a court began to issue interpretation, sometimes political sectors refuse the honor. That was the beginning. Then later our court able to establish itself as a credible court. We will say that the court's decision has been primarily observed and honored by political sectors and in general, approved by the general public and the society. By it was the time period roughly from '85-2003. In roughly this time that the court function to a great extent, most of the cases were resolved at that time. There was one particular time that is in 1985 -1994 those periods of time, the petition when was so high as to 2702 cases. Before that time, the cases were only about 1145. Then the next term, the cases were 2334 cases. That is the case increase over time to the peak during democratic transformation. How about now? The number drops until now. There is a peak, and that peak was that democratization period. That means the course has been very busy in channeling democratization before. Then how about the function of the court? Has the court been a very active court, if you consider how many cases brought to the court, was declared unconstitutional by the court. Then you will see this court has been a very active court in some way. Say in year 85-94 the ratio of unconstitutional ruling was 28 percent. Then it reached to 39 percent in year 1994-2003. In 2003-2013 is 10 years. Guess what? Every two cases brought to the court there was one case that a court declare legislation or government regulation unconstitutional 49 percent of loss. This number pretty much similar to Taiwan constitutional courts partner in Korea. They also about the same number. This is very unique in some way. If you see in Japan, the Supreme Court since World War II, only declare a rapid less than 1,000 cases unconstitutional. Whereas Taiwan and Korea Constitutional Court has declared so many legislations or government actions unconstitutional trying to embrace civil liberty and constitutional principle through judicial review. But, are we talking about a red-guard court? Is Taiwan's Constitutional Court so brave and so active and so asserting its own rights that it may intervene into the politics or even second-guessing the public policy or even involved in political conflicts. The answer is no. While we see some constitutional court regularly involved in the political conflicts with other political branches, we found that in Taiwan, court while declining so many legislation and government orders unconstitutional. Still remain very cautious. I call that dialogic in nature. That is, court normally speak to the society, speak to other branch of the government depending on what kind of cases they are doing. So there has been research by myself and others on this matter, and we found out that, the court while responding to politically charged issue, will look into whether there is a consensus. If there has been discussion, deliberation, dialogue politically, and coming up with some general consensus the court will honor that and come up with a clear iron create tong supporting that change. Even carry on that change. Maybe the society is divided over something and couldn't get a result. A political sectors turn that issue to the court. The court will be very cautious in rendering decision. It will not step into the political arena or policy arena by coming up with course on agenda. Let's take some example. The most recent example, of course, is same-sex marriage. Same-sex marriage. This has been a lasting issue in Taiwan, somehow divided, but when the society began to debate and also argue about the issue through some time and now are some sort of development and more move on the issue. The court took the case where the court divide the issue into two. That is, whether constitutionally we should embrace the right for marriage for those people with same-sex. Same-sex marriage, according to the court, should be guaranteed constitutionally and also equal protection should be applied in that gender context. The failure of the civil code to recognize same-sex marriage is itself unconstitutional, then the follow up issue is very controversial. Even when you settle down, this rise issue. That is, whether we should change the civil code, or we come up with a special law to legalize same-sex marriage. This has been the center of debate in the society. People may take very strong positions on one over the other. But gradually the court sort of constraint itself by saying that whether to revise the civil code or to come up with a special law is up to the political sectors, including the executive and the legislature and the society, but the court set up two years you know, great period for the Congress and the executive, to talk about that, to digest this issue and if after two years you still can't provide legal remedy to that, you guys can simply go to the registrar to register your marriage. This is the style of ruling from the court. Clear on something, but leaving the decision room to the society, respect them and also provide time for compliance. The second case is a nuclear power plant case. As we all know, Taiwan has been suffering from that debate and conflict about false nuclear power plant. It has become a partisan politics. Society may be divided over this issue, tremendously. It happened in the context of the first regime change. When President Chen Shui-bian swung into the office, he had some agenda in mind that he's going to terminate the construction of the fourth nuclear power plant. It has been the policy advocated by the TPP for such a long time. He's going to carry that out. But the budget has been approved so many years prospectively, by the Congress, so there was also a partisan fight. Gradually the case moved to the court while confronting this issue, so divided, the court can't avoid. The court simply cannot say, "This is a political question we are not going to deal with." The court need to take the case, but at the same time, the court take the case in a cautious way and in a dialogical way. Because after all, whether to continue constructing false nuclear power plant, should we resolve politically? Political branches need to come up with a solution for that. The court is not going to say, "We are of the opinion that, the fourth nuclear power plant should continue, or should stop. The court didn't do that and we are relieved that the court didn't do that.
