Sidelights | Why is the Constitutional Court Unable to Function? An Unprecedented Constitutional Crisis? | 2026 Taipei International Book Exhibition Lecture

On February 5, the JRF visited the Taipei International Book Exhibition. Amid the turmoil surrounding the Judicial Yuan over the past year or so, we hoped to share with all book lovers: Why can't the Constitutional Court hold hearings? What are the pros and cons being debated among the Grand Justices? What is the legitimacy of the Constitutional Court's rulings? What would happen to us if we didn't have a Constitutional Court? Why is the situation encountered by the Constitutional Court over the past year considered a severe constitutional crisis?

I. When the Constitutional Court Procedure Act Becomes a Political Weapon, the Constitutional Court Instantly Loses Its Error-Correction Function

The amendment of the Constitutional Court Procedure Act at the end of 2024 drastically raised the threshold for Grand Justice deliberations, requiring "two-thirds or more of the existing total number of justices" and "no fewer than ten people." Given the current situation where the Legislative Yuan has rejected Grand Justice nominees, resulting in an insufficient statutory quorum, this amendment has essentially paralyzed the Constitutional Court into a state of "being unable to hold hearings and unable to make resolutions."

Ordinary courts "try cases in accordance with the law," and their operations are bound by law; however, as a "judicial error-correction mechanism," the Constitutional Court's duty is to review "whether laws are unconstitutional." When Congress paralyzes another constitutional organ through legal amendments, this transcends a mere procedural dispute and evolves into a constitutional-level crisis of the separation of powers.

II. What is the Controversy of the 2025 Constitutional Interpretation No. 1?

After a long hiatus, intense ideological confrontation emerged within the legal community over Constitutional Interpretation No. 1 of 2025. The three Grand Justices who opposed the majority opinion argued that the precondition for reviewing the Constitutional Court Procedure Act was to comply with the provisions of the Constitutional Court Procedure Act, maintaining that the Grand Justices should first abide by the laws passed three readings by the Legislative Yuan. However, the majority opinion fought back based on the "principle of constitutional supremacy," asserting that Grand Justices are bound by the Constitution rather than the Legislative Yuan.

The majority opinion argued that if the Legislative Yuan could technically hollow out the power of constitutional review, the equal footing of the separation of powers would cease to exist. Therefore, when involving "core official powers" being obstructed, the Constitutional Court must use "old legal procedures" to review "new legal disputes"; otherwise, the power of constitutional review will be completely hollowed out, falling into the logical paradox of "the Legislative Yuan deciding who can judge the Legislative Yuan."

III. An Unprecedented 5:0 Ruling: Is Excluding "Those Who Refuse to Participate in Deliberations" an Expedient Measure?

The most controversial procedural point in this case was that while three Grand Justices continued to be absent and refused to participate in deliberations, the remaining five Grand Justices adopted an approach akin to "recusal," excluding the absentees from the denominator to reach a 5:0 ruling.

This is unprecedented in judicial history, but from the perspective of "ensuring uninterrupted institutional operation" and "safeguarding the rights of the people," this is an expedient measure that had to be taken. The Constitutional Court cannot slide toward self-paralysis due to the passive inaction of a few members. Referring to civil law countries such as Canada, when the number of judges in constitutional courts is insufficient, there are usually complementary mechanisms (such as temporarily transferring judges from other judicial tiers) to ensure operations; in the current situation in Taiwan where complementary measures are lacking and nominations are blocked, maintaining the survival of the institution has become the primary goal.

IV. Drawing Lessons from Eastern Europe: Judicial Regression and "Democratic Civil War" under Populist Forces

From the cases of Poland and Hungary, it can be seen that democratic regression often begins with the slogan of "judicial reform." Once the ruling or opposition forces gain public support, if they further transform judicial power into a breakthrough for populism, constitutional protection will vanish entirely.

Returning to Taiwan's predicament, the "popular referendum to review constitutional rulings" currently proposed by the opposition party pushes Taiwan even further to the brink of the "era of grand referendums" and a "democratic civil war." If constitutional rulings can be reviewed by majority vote, it will directly destroy the function of the Constitutional Court in "defying the counter-majoritarian difficulty"—the responsibility of safeguarding the core values of the Constitution.

Conclusion: Justice Should Not Become a Victim of Political Struggle

Finally, Deputy Executive Director Elvin Lu emphasized that this is not for opposing a specific political party, but to ensure that no power can override the Constitution. When the survival of judicial organs becomes a bargaining chip between political factions, what suffers is not only the dignity of the judges, but also the basic human rights of every ordinary citizen. We look forward to finding the ultimate solution to the constitutional deadlock as early as possible in future Taiwan, and this is also the direction the JRF will continue to strive for.