Assessing the Constitutionality of Legislation: Constitutional Review in Taiwan’s Legislative Yuan

Abstract

This article examines the constitutional interpretative authority of Taiwan’s Legislative Yuan, while incorporating international viewpoints on constitutional review, primarily from the United Kingdom and the United States. It contends that Taiwan possesses an over-reliance on legal constitutionalism and strong judicial review, which hinders the Legislative Yuan’s interpretative authority. Author interviews from Legislative Yuan insiders demonstrate that lawmakers and staffers may not be actively thinking about the constitutionality of the bills they are presenting and that they possess few, if any, official consultation options when seeking advice on constitutional questions. In essence, the interviews displayed clear evidence of judicial overhang. The article further argues that constitutional review by legislatures is an inherent good and provides multiple avenues for the Legislative Yuan to increase their constitutional interpretative authority. It also calls for more nominations to Taiwan’s Constitutional Court to be made from members with elected political experience and for the Court to acknowledge (at some level) the legislature’s interpretative authority. After all, democratic constitutional structures are dynamic and Taiwan’s governmental branches should work to bridge the divide between legal and political constitutionalism, before the former becomes even more firmly entrenched.