Announcements
- Research Tips: see course web page
- Reading Questions due tomorrow in Quiz
Section.
- Next Wednesday, 5/16 Research Paper
Bibliography due in Quiz Section.
(Follow the Course Citation guide on course
webpage).
- Research Papers due in class and via Esubmit, Thurs 5/17.
Courts in New Democracies
I. The Historical Expansion of Judicial Review:
Three Waves of Democracy
A. First Wave: United States
- Marbury vs. Madison (1803): established
judicial review
(I. Historical Expansion, cont.)
B. Second Wave: Post/Fascism/PostColonialism/Post WWII (1950s,60s,70s)
- Germany, India, Japan, Italy, Spain
C. Third Wave: Post Communist/Authoritarian
(1980s,90s)
- Central and Eastern Europe, Latin America
II. Role of Courts in New Democracies
Development of a democratic Constitution:
How does a court accomplish this?
A. Clarity/Stability through interpretation
(neutral application of pre-existing rules)
B. Purposeful development of the
Constitution through judicial decisions
(II. Role of Courts in New Democracies,
cont.)
C. In your view, what role should courts and
the use of judicial review play in new
democracies?
(clarity through interpretation or purposeful
development of constitution)
Is there a way that Courts can engage in this
interpretation and remain removed from the
political environment?
III. Types of Cases
A. Vertical Separation of Powers Cases
-disputes regarding division of power
between federal and state/local government
B. Horizontal Separation of Powers Cases
-disputes regarding the relationship between
bodies in the government
C. Constitutional Rights Cases
-disputes involving individual and the
government
Taiwan Case Study
I. Distinctive Characteristics of Taiwan Courts
A. First example of modern constitutionalism
in China
B. Ambiguous international context
1. One-China paradigm
2. United States Security
C. Gradual and Extended Democratic
Transition
II. Council of Grand Justices (constitutional
court)
A. Creation: 1947 Constitution
(2000 Amendment, changed powers)
- Centralization of authority
- Constitutional adjudication is exclusively held
by the Council
(II. Council of Grand Justices, cont.)
B. History:
• 1895: military defeat forced China to cede
Taiwan to Japan
• Post WWII: reverted back to Chinese control
• 1949:nationalists fled to Taiwan created govt.
• 1996: first directly elected pres. Elections
• 2000: transfer of power from KMT to
Democratic Prog. Party, constitutional reforms
(II. Council of Grand Justices, cont.)
C. Structure and Relative Autonomy
1. Constitution: 1947 Constitution Chapter
VII, 2000 Constitutional Amendments Art 5
2. Judges: 15 grand justices, nominated &
appointed by Pres. with confirmation from
the legislature, 8 yr non-renewable term
(II. Council of Grand Justices
C. Structure, cont.)
3. Judicial Review:
• Authority to 1) interpret the Constitution
and 2) unify the interpretation of statutes
a. Abstract Review
b. Concrete Review
c. Dissolution of Political Parties
(II. Council of Grand Justices
C. Structure, cont.)
4. Access:
a. Govt. officials: legislature, executive,
administrative
b. private individuals
(II. Council of Grand Justices
C. Structure, cont.)
5. Separation of Powers/Relationship to the
Judicial System
a. Civil and Criminal Cases: The Supreme
Crt, High Crt and district courts
b. Administrative Cases: The Supreme
Admin. Crt and the High Admin Courts
c. Evolving Relationship between the
Council and the ordinary courts
Examples of evolving relationship between
Council and the Ordinary Courts
Decision #154: increased Council’s power over
the Supreme Court
Decision #177: Council decision binding on
retrial
Decision #371: Increased citizen access to the
Council
Question/Answer:
Is this type of self-created powers of jurisdiction
important for courts in new democracies? Why or
why not?
Why?: Similar to the Marbury vs. Madison case in the
US. Enabled court to better protect individual rights
and create an effective legal system.
Why not?: The court is just establishing its role and
place in new democracies and if it acts too
powerful, it might tarnish its legitimacy.
III. Individual Human Rights Protection in
Taiwan
A. Council of Grand Justices: Expansion of
Constitutional Rights
1. Marriage Annulment Case
2. Police Administration Law Case
(III. Individual Human Rights Protection in
Taiwan, cont.)
B. Administrative Courts: Expansion of
Administrative Review (2000)
C. Creation of Human Rights infrastructure
D. Continuing Problems
1. Judicial corruption
2. Violence against women