Abstract
Taiwan had made huge progress in protecting personal liberty in the last three decades. One of the best ways to demonstrate this significant development is to use this experience to test some prominent academic theories. Coincidentally, Professor Waldron’s most recent attack on judicial review provides a valuable chance to demonstrate Taiwan’s progress. This chapter uses Taiwan’s experience of protecting personal liberty to counter Professor Waldron’s three major criticisms of judicial review. First of all, Taiwan’s experience shows that the text of a constitutional bill of rights does indeed strengthen the protection of rights. Secondly, Taiwan’s case also reveals that it is in the cooperation between the judicial review and the Legislative Yuan that rights are more fully protected. Finally, Taiwan’s lessons from protecting personal liberty prove that Professor Waldron’s definition of the tyranny of the majority may be incomplete or even wrong.
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Notes
- 1.
According to Professor Stone Sweet, judicial review is one basic formula among the three formulas found in new constitutionalism. See Sweet (2012), p. 816.
- 2.
Various scholars have coined different terms to reflect the characteristics of the model of judicial review in the UK. Most recently, Stephen Gardbaum categorizes this pattern of judicial review as the “commonwealth model of constitutionalism;” see Gardbaum (2013).
- 3.
- 4.
For example, Alexander Bickel’s classic term “the counter-majoritarian difficulty” has appeared in many textbooks on constitutional law in Taiwan. This would mean that many law students in Taiwan have become familiar with this idea from their first year of legal study.
- 5.
Waldron (2006).
- 6.
- 7.
This would probably act as the most serious blow to Professor Waldron’s arguments. Further detail will be given in Section 3 below.
- 8.
For instance, the late Ronald Dworkin is one example.
- 9.
Waldron (2006), at p. 1359.
- 10.
Id., at p. 1382.
- 11.
Id., at pp. 1383–1385.
- 12.
Id., at pp. 1391–1393.
- 13.
Id., at p. 1391.
- 14.
Id.
- 15.
Id., at pp. 1397–1398.
- 16.
Id., at p. 1398.
- 17.
Id., at pp. 1351–1353.
- 18.
See the literature cited in footnote 6.
- 19.
Dafaguan Shizi Di 166 Hao [大法官釋字第 166號] (J.Y. Interpretation No. 166) (17 Nov 1980) (R.O.C.).
- 20.
Dafaguan Shizi Di 251 Hao [大法官釋字第 251 號] (J.Y. Interpretation No. 251) (19 Jan 1990) (R.O.C.).
- 21.
- 22.
To put it another way, the Hooligan Law empowered the police to control crimes without undergoing the normal procedures required by the law of criminal procedure.
- 23.
For a discussion on the definition of hooligan or liumang, see Cohen and Lewis, at pp. 37–52.
- 24.
Id., at pp. 53–61.
- 25.
Jiansu Liumang Tiaoli [檢肅流氓條例] (Hooligan Law), art. 6, section I (Taiwan). (The law was abolished on 21 Jan 2009).
- 26.
Id., at art. 11.
- 27.
Id., at art. 13, section I.
- 28.
Id., at art. 12, section I.
- 29.
Dafaguan Shizi Di 384 Hao [大法官釋字第 384 號] (J.Y. Interpretation No. 384) (28 July 1995) (R.O.C.) [hereinafter J.Y. Interpretation No. 384].
- 30.
Dafaguan Shizi Di 392 Hao [大法官釋字第 392 號] (J.Y. Interpretation No. 392) (22 Dec 1995) (R.O.C.).
- 31.
Dafaguan Shizi Di 588 Hao [大法官釋字第 588 號] (J.Y. Interpretation No. 588) (28 Jan 2005) (R.O.C.).
- 32.
Dafaguan Shizi Di 690 Hao [大法官釋字第 690 號] (J.Y. Interpretation No. 690) (30 Sep 2011) (R.O.C.).
- 33.
J.Y. Interpretation No. 384.
- 34.
Another advantage of a longer text is that it allows scholars to engage in what Professor Amar designates as intratextualism. See Amar (1999).
- 35.
There are four sections in Article 8 of Taiwan’s Constitution. Section 1 may be used as an example to show the detailed wording of the article:
Personal freedom shall be guaranteed to the people. In no case except that of flagrante delicto, which shall be separately prescribed by law, shall any person be arrested or detained other than by a judicial or police organ in accordance with the procedure prescribed by law. No person shall be tried or punished other than by a law court in accordance with the procedure prescribed by law. Any arrest, detention, trial or punishment not carried out in accordance with the procedure prescribed by law must be resisted.
- 36.
For more detail, see section 4.2 below.
- 37.
J.Y. Interpretation No. 384.
- 38.
Id.
- 39.
Tushnet (2010).
- 40.
Fallon (2008), at p. 1695.
- 41.
Id., at p. 1705.
- 42.
J.Y. Interpretation No. 384; Dafaguan Shizi Di 523 Hao [大法官釋字第 523 號] (J.Y. Interpretation No. 523) (22 Mar 2001) (R.O.C.); Dafaguan Shizi Di 636 Hao [大法官釋字第 636 號] (J.Y. Interpretation No. 636) (1 Feb 2008) (R.O.C.) [hereinafter J.Y. Interpretation No. 636].
- 43.
J.Y. Interpretation No. 384.
- 44.
J.Y. Interpretation No. 636.
- 45.
For literature in English, see Cohen and Lewis (2013), at pp. 197–200.
- 46.
Waldron (2006), at p. 1396.
- 47.
Id., at p. 1397.
- 48.
Id., at p. 1398.
- 49.
The term “topical minority” was invented by Waldron, and it seems to me that Waldron has not defined precisely what “topical minority” means. Thus, a topical minority can be arrived at through any number of possible situations.
- 50.
In the Hooligan Law (Article 19, section 1), the period of indefinite detention is up to 3 years.
- 51.
All in all, the above analysis reveals that Waldron’s idea of the tyranny of the majority is a formalistic one. In particular, in terms of the practice, the evils that can only be rectified by judicial review are by no means confined to the situation described by Waldron, therefore the concept of the tyranny of the majority should be a functional one.
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Lin, F.CC. (2019). A Core Case for Judicial Review–Protecting Personal Liberty in Taiwan. In: Cohen, J., Alford, W., Lo, Cf. (eds) Taiwan and International Human Rights. Economics, Law, and Institutions in Asia Pacific. Springer, Singapore. https://doi.org/10.1007/978-981-13-0350-0_21
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