Grace Periods and Suspension Orders for Constitutional Remedies: Lessons from the Taiwan Constitutional Court

This chapter examines four constitutional remedies: Prospective Invalidation; Suspension Order; Remedial Interpretation; and Judicial Directive. In enforcing these four remedies, the courts have either deliberately postponed or expedited a remedy that generally follows from the judicial declaration of unconstitutionality, thereby blurring the traditional dichotomy between adjudication and legislation. Within common law Asia, as a general rule, constitutional decisions apply retrospectively. Kent Roach has observed that the suspension order in Canada gives the government ‘an opportunity to engage in policy-making, by deciding which of a range of multiple constitutional options would be implemented in light of the court’s ruling’. Remedial Interpretation is a constitutional remedy whereby the courts read-in words or read down the legal effect of statutory language, so as to make the law constitutionally compliant, without resorting to an outright invalidation. A Suspension Order permits an otherwise unconstitutional law to remain in place while the government devises corrective legislation.

Confucian Constitutionalism without Remedies Justin Tiwald (bio) I. Introduction In his splendid and provocative book Theorizing Confucian Virtue Politics: The Political Philosophy of Mencius and Xunzi, Sungmoon Kim proposes that we read the great classical Confucian philosophers Mencius (Mengzi 孟子, fourth century b.c.e.) and Xunzi 荀子 (third century b.c.e.) as constitutionalists. As I read Kim, he understands constitutionalism as [End Page 506] something like a commitment to creating durable institutions, one of whose primary aims is to constrain the exercise of legitimate political authority and facilitate its good and proper uses. Mencius’ constitutionalism appears primarily in his arguments for making it customary to appoint virtuous ministers or advisors. Insofar as a non-ideal ruler might be tempted or inclined to exercise his authority wrongly, the virtue of those ministers should help to minimize abuses, blunt the effects of bad or narrowly self-serving decisions, and incentivize decisions that provide for the material needs and moral development of the populace. Since the virtue of particular subordinates does much of the relevant work, Kim appropriately calls Mencius a “virtue constitutionalist” (Kim 2020, pp. 63–75). In contrast, Xunzi’s constitutionalism appears primarily in his remarks about the importance of fa 法 (institutional rules), chief among these being the ritual models or standards by which social distinctions are recognized and cemented and civic responsibilities are defined. Moreover, Xunzi has a great deal of concern for the continuity of a government’s fa from one regime to the next, perhaps suggesting that so long as the fa are stable and effective, one ruler can be replaced by another and the government for all intents and purposes will remain unchanged.1 Because rituals do much of the relevant work of constraining abuses of power and facilitating good governance, Kim terms Xunzi’s variant of constitutionalism “ritual constitutionalism.” “Constitutionalism” can be understood in many different ways. But when people nowadays use the term in their accounts of the history of political thought, they tend to have in mind a sense of “constitutionalism” that presupposes that constitutional constraints on political authority come with constitutional remedies. Roughly, a constitutional remedy is some sanctioned means of enforcing constraints or correcting political authorities who fail to abide by them. Moreover, it is often thought that the remedies should be entrenched—that is, widely recognized and regarded as beyond the legitimate power of the political authorities to change easily. Entrenched remedies are important for a number of reasons. First, constraints on political power would be relatively meaningless if the person that they are meant to constrain can easily amend or jettison them. If there is a rule or established custom that requires a monarch to be instructed on humane governance on the classics mat, or to perform a certain ritual before determining whether to go to war, or prohibiting him from issuing laws or policies that punish innocent people ex post facto, and if the monarch is free to modify a rule or custom at a whim, then the rule or custom will have very little bite. Second, constitutional remedies help to distinguish constitutional norms from other political norms. Most anyone with a minimal sense of decency believes that political authorities ought to provide ways of meeting the basic needs of their subjects, that they ought not to punish innocent people, and that they ought to deliberate carefully and solicit the views of an informed [End Page 507] commentariat or public before going to war. The difference between constitutionalist political thinkers and the other minimally decent ones is that the constitutionalists also say that vested parties have some sort of recourse available when their leaders fail to observe such norms. This is roughly the difference between a mere ideal of good governance and enforceable power or right. Finally, at least on many recent tellings of political history, constitutional regimes with entrenched remedies are the sorts of constitutional regimes that matter most. They were hard-fought and hard-won by peoples in all parts of the world, and it is by virtue of flouting or ignoring certain entrenched rules or customs that a merely imprudent or bad political leader becomes an autocrat. For ease of reference, I will refer to the...

The conventional account of our remedial tradition recognizes that courts may engage in discretionary public interest balancing to withhold the specific remedies typically administered in equity. But it generally does not acknowledge that courts possess the same power with respect to the substitutionary remedies usually provided at law. The conventional account has things backwards when it comes to constitutional remedies. The modern Supreme Court frequently requires the withholding of substitutionary constitutional relief under doctrines developed to protect the perceived public interest. Yet it has treated specific relief to remedy ongoing or imminent invasions of rights as routine, at least when the underlying claim is justiciable and subject to neither a judicial federalism doctrine nor statutory preclusion.This paper details the reversal of the conventional account of remedial power and advances a two-part hypothesis that the Court’s behavior traces an appropriate con- stitutional boundary. The hypothesis is as follows. First, substitutionary constitutional remedies, while integral to the proper functioning of our constitutional order, are individually contingent and susceptible of legislative or judicial expansion, contraction, or replacement as the perceived public interest dictates. But second, specific relief must be available for justiciable and meritorious claims of constitutional right to which neither a judicial federalism nor a statutory diversion doctrine applies, and an effective constitutional remedy ultimately must be available even in these exceptional cases.

Constitutional dialogue theory has some great qualities. It is balanced, democratic, and deliberative. It has a special legitimacy-enhancing role due to the place that it gives to legislatures and to the political process. Even its name has a positive aspect. However, this important theory has a major flaw: it does not protect human rights well. This theory puts most of the weight on institutional interaction, and not enough weight on the petitioners’ rights. This Article wishes to strengthen this criticism through a discussion of the strong connection between constitutional dialogue and constitutional remedies. The court choice of remedy can facilitate the legislature’s ability to enact a legislative response as a part of the ongoing dialogue between courts and legislatures. The constitutional remedies are an invitation, directed to the political branches, that can leave the discretion regarding desired policy in the political field, while minimizing the judicial intervention in the legislative fora. An invitation to take (or restore) constitutional responsibility and sensitivity. However, this invitation sees only political institutions, instead of the ones who need the remedy the most: the petitioners. Soft and legitimacy-enhancing designing of constitutional remedies cast the price on the petitioners’ shoulders, who do not win full remedying in the name of constructive inter-institutional dynamics. Thus, using the Israeli Supreme Court’s use of constitutional remedies as a test case, the main argument is a claim in favor of judicial use of strong and status-quo changing remedies that protect the petitioners’ rights. Counterintuitive as it may seem, the dialogue theory—which is built upon the political branches ability to respond—enables and legitimizes the choice to use strong remedies. The latter is the outcome of the responsive nature of the theory and the temporal nature of the constitutional remedies.

In HIV infection, dynamic marginal structural models have estimated the optimal CD4 for treatment initiation to minimize AIDS/death. The impact of CD4 observation frequency and grace periods (permitted delay to initiation) on the optimal regimen has not been investigated nor has the performance of dynamic marginal structural models in moderately sized data sets-two issues that are relevant to many applications. To determine optimal regimens, we simulated 31,000,000 HIV-infected persons randomized at CD4 500-550 cells/mm to regimens "initiate treatment within a grace period following observed CD4 first <x cells/mm," x = 200, 210, …, 500. Natural history and treatment response were simulated using previous model estimates from CASCADE data. Optimal treatment regimens for the observation frequencies and grace periods were defined by highest 10-year AIDS-free survival. To evaluate the performance of dynamic marginal structural models, we simulated 1000 observational studies (n = 3,000) with CD4-dependent treatment initiation. Decreasing the frequency of CD4 measurements from monthly to every 3, 6, and 12 months increased the optimal regimen from a CD4 level of 350 (10-year AIDS-free survival, 0.8657) to 410 (0.8650), 460 (0.8634), and 490 (0.8564), respectively. Under a regimen defined by x = 350 with annual CD4s, 10-year AIDS-free survival dropped to 0.8304. Extending the grace period from 1 to 3 or 6 months, with 3-monthly CD4s, maintained the optimal regimen at 410 for 3 months and increased it to 460 for 6 months. In observational studies with 3-monthly CD4s, the mean (SE) estimated optimal regimen was 402 (76), 424 (66), and 430 (63) with 1-, 3-, and 6-month grace periods; 24%, 15%, and 14% of estimated optimal regimens resulted in >0.5% lower AIDS-free survival compared with the true optimal regimen. The optimal regimen is strongly influenced by CD4 frequency and less by grace period length. Dynamic marginal structural models lack precision at moderate sample sizes.

Virtually all constitutional scholars agree, and the Supreme Court has uniformly held, that our entire system of constitutional democracy is premised in important part on the dictate of judicial review, i.e., the power of the judiciary to exercise the final say as to the meaning of the provisions of the counter-majoritarian Constitution. Absent judicial review, the fundamental speed bumps to tyranny which the Framers so carefully inserted into our political structure would be rendered all but useless at best and a fraud on the electorate at worst. Yet puzzlingly, most of the very same scholars and judges assume that the remedies to be issued to enforce the judiciary’s interpretations of the Constitution are fully controlled by the very political branches which the Constitution is designed to restrain. Thus, all the political branches need do to avoid constitutional control is deny to the courts any power to enforce their decisions. Such a logically inconsistent dichotomy indirectly destroys the essence of the judicial review process that is so central to American constitutional democracy. Yet the respected constitutional scholars to have examined the issue of constitutional remedies seem not to have recognized either the serious logical flaw or the potentially grave practical dangers in vesting in the very branches sought to be controlled by the Constitution the final power to determine the scope — indeed, the existences — of remedies to enforce constitutional dictates. Nor has the Supreme Court acknowledged the unique nature of constitutional remedies. Instead, the Court has incorrectly deemed implied constitutional and statutory remedies to be coterminous as a matter of judicial power, when the fundamental elements of American political theory make clear that the two are completely distinct. In this Article, the author explains the inherent theoretical and practical link between constitutional review and constitutional remedies, demonstrating that full control of constitutional remedies belongs in the judiciary, not the political branches. He then explains how judicial inference of constitutional remedies in the face of textual silence on the issue can be justified by principled theories of textual interpretation.

Virtually all constitutional scholars agree, and the Supreme Court has uniformly held, that our entire system of constitutional democracy is premised in important part on the dictate of judicial review, i.e., the power of the judiciary to exercise the final say as to the meaning of the provisions of the counter-majoritarian Constitution. Absent judicial review, the fundamental speed bumps to tyranny which the Framers so carefully inserted into our political structure would be rendered all but useless at best and a fraud on the electorate at worst. Yet puzzlingly, most of the very same scholars and judges assume that the remedies to be issued to enforce the judiciary’s interpretations of the Constitution are fully controlled by the very political branches which the Constitution is designed to restrain. Thus, all the political branches need do to avoid constitutional control is deny to the courts any power to enforce their decisions. Such a logically inconsistent dichotomy indirectly destroys the essence of the judicial review process that is so central to American constitutional democracy. Yet the respected constitutional scholars to have examined the issue of constitutional remedies seem not to have recognized either the serious logical flaw or the potentially grave practical dangers in vesting in the very branches sought to be controlled by the Constitution the final power to determine the scope — indeed, the existences — of remedies to enforce constitutional dictates. Nor has the Supreme Court acknowledged the unique nature of constitutional remedies. Instead, the Court has incorrectly deemed implied constitutional and statutory remedies to be coterminous as a matter of judicial power, when the fundamental elements of American political theory make clear that the two are completely distinct. In this Article, the author explains the inherent theoretical and practical link between constitutional review and constitutional remedies, demonstrating that full control of constitutional remedies belongs in the judiciary, not the political branches. He then explains how judicial inference of constitutional remedies in the face of textual silence on the issue can be justified by principled theories of textual interpretation.

The wide powers of judicial review granted to South African courts by the Constitution have, predictably and correctly, led to the judicial broadening of the ambit of persons who qualify as a surviving ‘spouse’ for the purposes of the Intestate Succession Act, 1987 (‘the ISA’). Surviving heterosexual life partners, however, remain excluded. In an earlier publication, I concluded that this exclusion violates the rights to equality and dignity of these partners. Building hereon, this article considers the fashioning of the appropriate constitutional remedy. In doing so, it identifies the prevailing positive law as an example of what I term ‘judicially generated residual discrimination.’ This occurs when a new form of marginalisation arises in our constitutional democracy as the (presumably unintended) by-product of the judicial broadening of a (pre-1994) piece of legislation. Where a court finds this to constitute unfair discrimination, the nature, scope and effective date of remedial action may be complicated by the very fact that the unfair discrimination has arisen as a result of earlier, but post-Constitutional, case law. This is particularly so in the case of the ISA, because standing ‘reading-in’ orders granted by the Constitutional Court – that have never been addressed by the legislature – need to be tinkered with by the court. This requires the doctrine of precedent to be considered in a context in which it has never been considered before in South Africa (or in comparable jurisdictions such as the United States and Canada). The article proffers a remedy that addresses these issues while conforming to the constitutional demands of providing ‘appropriate relief’ by means of an order that is ‘just and equitable.’ In this manner, it also provides perspectives that may be taken into account by courts that may have to adjudicate upon similar instances of ‘judicially generated residual discrimination’ in future.

Recent experiences of constitutional review in the common law world have received increasing attention in comparative constitutional law scholarship. Looking beyond the common law jurisdictions, this Article investigates the influence of variations on unconstitutionality management and changing constitutional politics on the functional mutation of remedial grace periods. Through a case study of Taiwan in light of the comparison of the civilian-continental vs. common law models of constitutional review, it argues that legal tradition and the court’s role vis-à-vis the political branch in the dynamics of constitutional politics jointly contribute to the multifunctional role of remedial grace periods in unconstitutionality management. As part of unconstitutionality management across constitutional jurisdictions, the granting of remedial grace periods is not simply the manifestation of judicial strategy. The argument unfolds in three main Parts. Part I first compares the use of remedial grace periods in constitutional review under the civilian-continental and the common law models. After drawing out the different paths toward unconstitutionality management in comparative constitutional review, Part II conducts a functional analysis of remedial grace periods in the case law of the Taiwan Constitutional Court (TCC). It is observed that the three forms of remedial grace periods—bridging, nudging, and hedging—as indicated in the TCC case law are informed by the conceptual framework of graduated unconstitutionality borrowed from the civilian-continental model. Part III further analyzes how remedial grace periods have been instrumental to the TCC’s realization of its institutional potential. In conclusion, the TCC’s continuing and frequent prescription for remedial grace periods indicates its default position in constitutional remedies, which is both informed by the civilian-continental model and shaped by its formative experience at the dawn of democratization.&#13;\n&#13;\n

Emerging democracies often face significant challenges in ensuring the effective protection of fundamental rights due to evolving institutions, political instability, and nascent judicial frameworks. Constitutional remedies serve as essential tools for safeguarding individual liberties and maintaining the rule of law. This research paper provides a comparative analysis of constitutional remedies available across major emerging democracies, including India, South Africa, Brazil, and Indonesia. Through doctrinal analysis, case studies, and empirical data, the study highlights the strengths, limitations, and practical enforcement mechanisms surrounding constitutional remedies such as writ petitions, judicial review, public interest litigation (PIL), and constitutional courts. The paper concludes by emphasizing the importance of judicial independence, accessible legal frameworks, and participatory governance for ensuring sustainable human rights protection.

Extensible Business Reporting Language (XBRL) is intended to make analysis easier and faster by enhancing the exchange of financial information. Such benefits from this global reporting standard would stem from more timely, accurate, and transparent financial reporting. This article investigates whether internal control weaknesses (ICWs) in firms have an impact on the timeliness of financial reporting in XBRL format. The results of our analyses show that the filing lags of firms with ICWs are longer than those of firms without ICWs for their first detail tagged XBRL disclosure. The results also reveal that firms with ICWs are more likely to use the grace period in their initial XBRL disclosures. The length of the grace period used by firms with ICWs is longer than that of firms without ICWs. Furthermore, our additional analyses reveal that the XBRL mandate has affected firms’ filing behaviors differently depending on firm characteristics such as firm size. Overall, our findings indicate that the impact of ICWs on the timeliness of financial reporting is greater under the mandated XBRL disclosure.

In order to accomplish its objectives of extensively regulating rights and obligations, the 1996 Constitution of South Africa similarly provides for the enforcement of those rights by the courts. In turn, it has, in the said enforcement provisions, invested in the courts enormous discretionary powers to enable them to effectively deal with breaches of the entrenched fundamental rights as well as all constitutional rights violations. That the Constitutional Court has purposefully interpreted and made optimum use of the expressions: ‘appropriate relief’ and ‘just and equitable’ order in developing the constitutional remedies jurisprudence is crystal clear from a wealth of available case law. It is also not in doubt that the contributions of Justice Ngcobo (later Chief Justice) in this regard are intellectually gratifying. This presentation singles out for discussion and analysis the judgment of Ngcobo J in Hoffman v South African Airways 2001 (1) SA 1 (CC) which not only typifies judicial activism at its acme; it has also introduced into the South African public and labour laws, the novel remedy of ‘instatement.’ Apparently drawn from the analogy of the labour law remedy of reinstatement, ‘instatement’ is akin to the remedy of mandamus in public law, and specific performance in the law of contract. This article moves from the premise that this innovation is one of its kind in contemporary common law jurisprudence and one which courts in the common law jurisdictions world would no doubt emulate one fine day.

Scholars have long understood that political parties play an important role in shaping constitutional culture over time. This occurs most obviously through judicial appointments but also by participating in the shaping of public opinion and passing legislation affecting the scope of our fundamental commitments. But recent legal challenges to the healthcare law highlight the ability of political parties to use courts to shift the scope and meaning of our policy and constitutional commitments also in the very short run, through their strategic support for high-stakes public litigation. In both the NFIB and King challenges, some number of political opponents of the healthcare law recognized in the developing legal case an opportunity to extend a fight that had been waged in the political branches (at both the state and federal level), to a new and potentially more favorable battleground. This paper seeks to identify, for the first time, the mechanisms that allow political parties to play this role. I use the healthcare challenges to show that parties, acting under certain conditions, can increase both the success and also speed at which politically-charged legal claims are dislodged from off-the-wall to being fair game for courts. In particular, I argue that this happens through four main mechanisms, each of which can be observed in two healthcare cases. Political parties have a unique ability, beyond what is available to private litigants or social movements, to initiate and support legal challenges by 1) providing the direct infrastructure for public litigation, 2) communicating salience of the challenge to courts, including by signaling the case’s importance, 3) provide a common vocabulary of constitutional meaning that mediate between the litigants, the courts, and the public, and 4) framing relevant prudential considerations that might influence judicial decisionmaking. I describe how these four connected mechanisms were used by the party apparatus — through a process I term “partisan constitutionalism” — to advance the ACA challengers’ legal claims. I show that these dynamics helped move the challengers’ arguments from being widely considered unthinkable to being open and contested questions — thus providing cover for courts to depart from settled precedent to rule in favor of the challengers. This paper seeks to show the different ways that parties can support strategic constitutional litigation — while also acknowledging that various political and institutional considerations will often prevent them from playing this role. I conclude that partisan constitutionalism has been made both more attractive and feasible by the background conditions of hyperpolarization and divided government. Rising polarization increases the incentives for political actors to “constitutionalize” political arguments and then for judicial actors to accommodate these attempts, while divided government increases the frequency of situations in which a party finds it advantageous to pursue its policy objectives through strategic litigation rather than orthodox lawmaking. These two features of our modern politics reinforce each other, helping to explain why the party-driven constitutional litigation observed in the healthcare cases is a relatively recent phenomenon — even as many of the mechanisms identified here have long been available to political parties. This dynamic threatens to fundamentally change the role of the judiciary, which increasingly will tend to function — and thus be treated by political actors — as a new institutional veto point for the political process.

Understanding the impact of constitutional rights in the real world depends on understanding the law of constitutional remedies for their violation. Integrating the history, doctrine, and policy of constitutional remedy, Wells and Eaton explain how people go about trying to obtain redress for violations of their constitutional rights. Diverse issues arise when persons seek to bring a lawsuit against governments, officials, or private individuals for violation of their constitutional rights. Among them are whether the injury ought to be accorded constitutional status at all, or instead should be treated as a routine wrong, no different in principle from a traffic accident. If the case warrants constitutional status, the next issue is whether or not suit may be brought against the officer who committed the wrong or his government employer, and so on. On each of these and other issues the authors guide the reader through the complex body of doctrine, the lively case law debates, and the scholarly literature over the appropriate mix of policies and the means by which to achieve them.

A well-developed system of constitutional review is a ‘must-have’ feature of liberal democracies aimed at realizing constitutional justice and human rights protection. In Europe, constitutional review mechanisms have now developed to be part of a multilevel system of rights protection involving the domestic judiciary, including the constitutional court, the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR). France is generally categorised in the European continental model of constitutional review of legislation operated by a specialised court. Yet, the French system has very much stood apart in this regard, on a tradition of Legicentrisme and a fear of government by judges. There was, as for other things, an ‘Exception Francaise’ featuring a system with, originally, no proper constitutional court and, up until recently, a weak form of constitutional review. The protection of rights offered a combination of ex ante abstract constitutional review of legislation operated by the Constitutional Council (CC) against the provisions of the Constitution, and the subsequently developed conventional review performed by ordinary judges against rights contained in international and European conventions, including the ECHR. This has changed with the introduction of ex post concrete constitutional review in 2008. The Priority Question on Constitutionality (PQC) is a new constitutional remedy which allows individuals to challenge laws already in force that infringe their constitutional rights and freedoms before ordinary courts in the course of proceedings. Subject to a filtering mechanism involving the two highest courts (the Council of State, the supreme administrative court, and the Court of Cassation, the supreme judicial court), the issue on constitutionality is decided by the CC under Article 61-1 of the 1958 Constitution: ‘If, during proceedings in progress before a court of law, it is claimed that a legislative provision infringes the rights and freedoms guaranteed by the Constitution, the matter may be referred by the Conseil d'Etat or by the Cour de Cassation to the Constitutional Council which shall rule within a determined period’. Entered into force in March 2010, its three years of operations reveal a ‘French legal success story’. With nearly 280 PQC decisions rendered by the CC, the new review has solidly and rapidly established itself in domestic constitutional law. It has also been a qualitative success. The PQC has affected all areas of law, with the most significant activity in tax and criminal law. Significant rulings have enhanced the protection of rights and provoked changes in the legislation on, for examples, police custody, involuntary confinement and sexual harassment. The introduction of ex post review has profoundly modified the tenets of constitutional review. It represents a landmark in further development of constitutionalisation and in the achievement of constitutionalism in France. It has helped to ingrain the Constitution politically, civically and, of course, judicially. The French system of rights-based constitutional review is heading towards completeness and convergence with the dominant European model of constitutional review addressing the requirements of modern democracy. Yet, the PQC had to ‘fit in’ an already settled and complex domestic courts system and, as outlined above, a singular scheme of rights adjudication involving review of constitutionality and review of conventionality. Various issues arose at drafting stage and in the first years of operation posing interesting challenges in terms of constitutional justice and governance. The study is divided into two main parts about the evolution of the model of constitutional review, on one hand, and the practice and endurance of the new form of constitutional review, on the other hand. The first part aims at explaining the original form of constitutional review and its development with emphasis on the PQC. The second part examines specific issues raised by the new mechanism from an institutional perspective, in particular the changing role of the CC and its relationship with other courts, domestic and European, as well as with the legislator. The aim of the study is to provide a better understanding of the French system of right-based constitutional review in light of most recent developments The methodology adopted is not comparative per se, although specific comparisons will be made with relevant European systems. Also, the approach will focus on institutional aspects rather than on the substance of rights.