The Political Question Doctrine in Taiwan

Table of Contents

ABSTRACT

1. INTRODUCTION

2. LITERATURE REVIEW: POLITICAL QUESTION DOCTRINE

3. METHODOLOGY

4. POLITICAL QUESTION REVIEW ONE: TERRITORIAL CONTROVERSIES
Formosa and the Pescadores
Mainland China
Outer Mongolia

5. POLITICAL QUESTION REVIEW TWO: CONSTITUTIONAL ANALYSIS

6. POLITICAL QUESTION REVIEW THREE: JUDICIAL BEHAVIOUR

7. CONCLUSION

ABSTRACT

This thesis studies Judicial Yuan Interpretation No.328 [1993] – the first constitutional court decision specifically relating to the use of the political question doctrine in Taiwan. Taiwan’s constitutional court, on the whole, does not refuse to involve itself in political questions, but this case represented an opportunity for the Justices of the Republic of China (Taiwan) to introduce the political question doctrine into Taiwan’s legal system. The Judicial Yuan’s previous and subsequent judicial reviews included cases in which the constitutional court dismissed the authoritarian congress for democratisation (Judicial Yuan Interpretation No.261 [1990]) or struck down an unconstitutional constitutional amendment (Judicial Yuan Interpretation No.499 [2000]). It is therefore doubtful that the Justices would claim to be unable to determine the political question in Judicial Yuan Interpretation No.328 [1993]. The court had by then become too powerful to persuade people that it should address the political question doctrine. The Justices applied the political question doctrine in this case only because they wished to avoid becoming mired in political controversy.

1. INTRODUCTION

The political question doctrine is a principle of self-restraint on the part of judicial power, set in place in order to prevent the courts from involving themselves in political difficulties.¹ However, there is still no common consensus amongst constitutional law scholars regarding the criteria in which the doctrine could be used.² Therefore, it is always reasonable to question the real purpose of the court when it decides to apply the doctrine, especially for courts such as the Judicial Yuan in Taiwan which does not otherwise refuse to involve itself in political matters.³

It is remarkable to discover that the Judicial Yuan has applied the political question doctrine in its strictest sense only twice⁴ since it was established. In other cases, the Judicial Yuan has not only responded to political questions but has also on frequent occasions imposed its will on both the government and congress. In other words, it seems that answering political questions is normal procedure for the Judicial Yuan, and that hiding behind the political question doctrine is unusual.⁵ Judicial Yuan Interpretation No.328 [1993] was the first piece of constitutional litigation to be dismissed for lack of jurisdiction on the basis of the political question doctrine in Taiwan. Previous records show that the Judicial Yuan had never applied the doctrine in any constitutional litigation in which political questions were involved, so the first use of the doctrine is extraordinarily meaningful. What made this particular interpretation so different to other constitutional litigation?

Judicial Yuan Interpretation No.328 [1993] was appealed by 18 congressmen from the Democratic Progressive Party (DPP) against the ruling Nationalist (KMT) Government. The DPP congressmen refused to allow a budget for the Mongolian and Tibetan Affairs Commission within the Government of the ROC, claiming that Mongolia and Tibet were no longer parts of the ROC, and had not been since 1949. These DPP congressmen appealed to the Judicial Yuan for a judicial review on the delimitation of the ROC’s national territory.

The origin of this territorial dispute is a thorny political subject: the Government of the ROC was defeated by the Chinese communists in the Chinese Civil War, and as a result the government lost its control over the Chinese mainland, including Mongolia and Tibet. However, the Constitution of 1947 was enacted before the Chinese Civil War and is unquestionably a Constitution designed for the whole of China. This means that according to the mischief rule,⁶ both Mainland China and Mongolia are constitutionally part of the ROC. Moreover, the constitutional amendments enacted after the Civil War confirm by implication the constitutional status of the above disputed territories:

To meet the requisites of the nation prior to national unification, the following articles of the ROC Constitution are added or amended […]⁷

However, there is always a gap between constitutional regulations and actual politics. A constitutional article can only enunciate the political position of the majority of the population, yet it tells nothing in terms of the proportions of that majority. A majority, for example, could only account for 50.1 percent of total population. What this means is that if a constitutional court decides to step into such a territorial and political controversy, the constitution provides no political safeguard against opposing voices. The court would therefore become mired in this political difficulty if the minority were comparatively large and vocal, and this was the situation the Judicial Yuan was confronted with in Judicial Yuan Interpretation No.328 [1993].

This thesis will begin with a definition and analysis of the political question doctrine in order to understand the nature of its use by the Justices of the Judicial Yuan. Through a literature review defining the political question doctrine, this thesis argues that there is no constitutional duty at all for the Judicial Yuan as regards the use of the doctrine. Therefore, if the Judicial Yuan decided not to involve itself in a case on the basis of the doctrine, this would reflect the Justices’ desire to distance itself from the case, rather than their incapability to interfere in it.

After analysing the nature of the use of the political question doctrine, the thesis will continue by studying the origin of the territorial political controversy that was involved in Judicial Yuan Interpretation No.328 [1993] through a historical analysis of the national territories of the ROC. It will subsequently demonstrate that the Judicial Yuan deliberately introduced the political question doctrine into the Taiwanese legal system via the case, because the Justices acknowledged that it was beyond their political power to determine the nature of the political question in this case. The discussion will close by looking at the political approaches in order to examine the justification in using the political question doctrine in Judicial Yuan Interpretation No.328 [1993].

2. LITERATURE REVIEW: POLITICAL QUESTION DOCTRINE

In general terms, the political question doctrine is a principle the judicial authority uses to restrict its own actions in order to prevent the courts from trying controversial issues which involve what are considered political matters.⁸ It is believed that the doctrine is derived from the English legal tradition of Royal Prerogative which has been applied by the English courts since the 17th century and has since been introduced into the American legal system through the US Supreme Court.⁹ However, the doctrine has been developed differently in light of American needs¹⁰ in comparison with the original English norm, although they still have some similarities in abstracto.

The original function of the English legal tradition was to identify and protect exclusionary powers held by the Monarchy. The English courts decided in Bate’s Case ¹¹ that the Crown still possessed some absolute powers, and these powers were not limited under law (Primary Legislation)¹² in accordance with the subsequent Case of Proclamations.¹³ The famous English jurist Albert V. Dicey laid down an authoritative definition in respect of the Royal Prerogative powers in 1885, stating that:

The ‘prerogative’ appears to be both historically and as a matter of actual fact nothing else than the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown. […] Every act which the executive government can lawfully do without the authority of an Act of Parliament is done in virtue of this prerogative.¹⁴

According to Dicey’s definition, the English courts would not confront a dilemma based on a political question because the courts could only deal with issues of administrative legality and had no authority over political questions. The courts adopted an exclusive logic in determining the legality of English executive actions, although this logic only tests whether the English Government infringes the law. As long as the government does not violate any Act of Parliament, it is in principle entitled to decide any policy arbitrarily. In other words, the English Royal Prerogative has been practiced strictly, insofar as the British legal system is entitled to take an exclusive position which derives from the Crown in determining political matters, as long as there is no Act of Parliament preventing the government from so doing.¹⁵ It is therefore reasonable to argue that almost no political question is decided by the English courts because the government enjoys the power of Royal Prerogative which dictates that the courts have no power to interfere, and the only areas of executive action the English courts can challenge are issues of legality. This is probably the reason why the UK had one of the worst human rights records in Western Europe during the 1980s and the 1990s, because the UK courts were too weak to protect human rights against the government before the GCHQ case¹⁶ was held.

The contribution of this English legal tradition is that it clearly founds a constitutional safeguard against the abuse of power when determining political questions. In the UK, as a monarchical state, it is not surprising that its government has historically possessed various powers which are in abstracto owned by the Crown,¹⁷ and these so-called common law powers have covered most political considerations. However, the power of the Monarch can be limited or removed by an Act of Parliament¹⁸ according to the principle of parliamentary sovereignty.¹⁹ At present the UK Parliament enjoys legislative power by dealing with political questions through legislation. In other words, the English legal tradition clearly enunciates that its law (common law and legislation) is ‘an inherently and inescapably political process’²⁰ in resolving political controversies, and the power of making political decisions is lawfully shared only by the government and Parliament. The UK courts, scilicet, are only empowered to decide in principle on whether or not the government has infringed an Act of Parliament.

However, the political question doctrine appears to be employed differently in the USA because of the fundamental difference between the US constitutional framework in comparison with the British monarchy and Parliament. The most important distinction is that the USA was formed by its Constitution²¹ rather than by political tradition as in the UK’s case. The US has a very clear and ultimate source of law – the Constitution – which has distributed governmental powers amongst the three branches, each of which is empowered constitutionally. This means that there are no ‘common law powers’ referred to in the American legal tradition that would offer a reserved privilege or prerogative to any state organ if their legal tradition is incompatible with the Constitution. It is therefore interesting to conclude that there is a branch of government that could be granted new constitutional powers that would entitle it to decide what shall be considered legally compatible. Obviously, this power has been practiced by the American courts for the past two centuries.

The original practice in terms of the political question doctrine in the USA was strongly influenced by the English legal tradition at first. The Supreme Court was likely to follow in the English courts’ footsteps in determining the legality of American executive actions. In the Jonathan Robbins Case,²² Chief Justice John Marshall adopted a new legal term of ‘Sole Organ’²³ which functioned similarly when compared with the English legal traditions discussed above. He stated:

The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. Of consequence, the demand of a foreign nation can only be made on him. He possesses the whole Executive power. He holds and directs the force of the nation. Of consequence, any act to be performed by the force of the nation is to be performed through him.²⁴

The Jonathan Robbins Case illustrates that the US Supreme Court intended to clarify which state branch should be the ‘Sole Organ’ internally that would be empowered to deal with such disputed political considerations under the Constitution.²⁵ The Supreme Court’s general position in respect of political questions was to distinguish whether or not a state organ’s behaviour was constitutionally compatible. The court therefore set up a self-restricted principle regarding judicial review, stating that it would only be obliged to review controversies which were constitutionally qualified to be heard.²⁶

In Cohens v. Virginia, 19 U.S.264 (1821), Chief Justice Marshall stated the Supreme Court’s position by holding:

We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. […] [W]e find this tribunal invested with appellate jurisdiction in all cases arising under the constitution and laws of the United States. We find no exception to this grant, and we cannot insert one.²⁷

This thesis argues that the original focus of the US Supreme Court on political questions was fundamentally the same as that of the English courts. Both were mainly concerned with the legality of state branches in determining political considerations. However, the USA has a constitution, and this was the ultimate source of law that was strictly practiced by the three branches of government. This was the dividing line between the US and UK jurisdictions. The English court found itself bound by English legal tradition because common law powers could be demonstrated ubiquitously,²⁸ whereas under the US Constitution it was impossible to embody all governmental powers in seven articles. In other words, the American courts discovered that a codified Constitution required some judicial interpretations in practice. The supremacy of the US Constitution resulted in an ‘implementation procedure’ under which the American legal tradition could not be automatically considered as law unless this legal tradition had been accredited as compatible with the Constitution. More importantly, the American courts acknowledged that they could play a more important role under the American separation of powers system in comparison with the English courts because the US Constitution provided more space for judicial interpretation.

The U.S. Supreme Court therefore started to carry out its ambition to determine political controversies through the innovation²⁹ of judicial review powers, which brought forth the decisive case of Marbury v. Madison, 5 U.S. 137 (1803):

[I]f a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.³⁰

If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.³¹

For this thesis, the contribution of the Marbury v. Madison to the American legal system determined that no absolute power belonged to any state branch in determining political considerations, because the courts could interfere at any time if they wished or needed to do so. More precisely, not only does the US Government have no common law powers under American legal tradition, but also Congress has no arbitrary legislative powers like the English Parliament. Both the US governmental administration and the congressal legislature are subjected to the Constitution insofar as they are all judicially reviewable by the courts in abstracto.³² Furthermore, Mabury v. Madison indicates that it is the duty of the judiciary to determine issues of constitutional compatibility regarding both the governmental administration and the congressal legislature. This thesis therefore argues that if an American court applies itself to the political question doctrine on trial, the court’s intention will be to conclude that either the conduct of the state branch is at least constitutional or to agree with the political decision decided by that branch. Even though the court concludes that the disputed political controversy shall be determined by a state organ other than the court itself (with no recourse to judicial review), the court still holds an opinion that is constitutionally compatible with the decision.

The opinion of this thesis, in querying the existence of the political question doctrine, appears to support that of Louis Henkin.³³ Henkin felt that the court could support the state organ’s political decision if it found the disputed controversy to have been determined constitutionally – either that or the court would be seen to hold an unconstitutional opinion.³⁴ In other words, there is no middle ground for the court to restrict its own power; under such a definition there is no political question doctrine at all. At a deeper level, the legal idea of ‘self-restriction’ appears to say in so many words that the American courts are not prohibited from making a judgment involving political considerations in accordance with the Constitution; conversely, the court is unwilling to do so.

However, some American constitutional law scholars hold a different view. According to Hall, the roots of the political question doctrine in Article III of the US Constitution that has ‘an explicitly “prudential” dimension, developed to keep the Article III courts from deciding questions that that are more suitable for decision by politically accountable decision makers’.³⁵ This opinion stands for the fact that the US Constitution tends to balance the three branches of power by empowering a constitutional duty of judicial review to the courts in order to make sure that every branch of power is practiced constitutionally without infringing upon the other two powers, including the judicial power itself. However, the courts are obliged to restrict their own powers without overreaching their authority toward the other two powers in light of the spirit of the Constitution, because it is the only state organ that possesses the power to determine what is considered a breach of the Constitution. For this thesis, the political question doctrine can certainly be considered as a soft law by the courts because it corresponds to the spirit of the US Constitution; however, it acts as no more than a shield to the courts whilst they work out whether or not they are acting improperly or laying themselves open to embarrassment by trying political controversies:

[...]

¹ David Schultz and John R. Vile, The Encyclopaedia of Civil Liberties in America (M.E. Sharpe 2005) 723.

² Cf. Rachel E. Barkow, ‘The Rise and Fall of the Political Question Doctrine’ in Nada Mourtada-Sabbah and Bruce E. Cain (eds), The Political Question Doctrine and the Supreme Court of the United States (Lexington Books 2007) 23-45 (asserting that the political question doctrine is ‘dying, if it is not already dead’ in America).

³ Cf. Nigel N.T. Li, An Li Xian Fa II: Ren Quan Bao Zhang De Cheng Xu [Constitutional Case Studies II: The Procedure for Human Rights Protection], vol 1 (San Min Books 2008) 253 (doubting that the role of the Judicial Yuan – at least according to the constitutional framework – would allow the Justices to avoid trying cases which included political controversies).

⁴ Judicial Yuan Interpretation No.328 [1993]; Judicial Yuan Interpretation No.419 [1996].

⁵ Cf. Nigel N.T. Li, An Li Xian Fa II: Ren Quan Bao Zhang De Cheng Xu [Constitutional Case Studies II: The Procedure for Human Rights Protection], vol 1 (San Min Books 2008) 250-260 (arguing that no standard for defining political question can be found in the Judicial Yuan).

⁶ James Holland and Julian Webb, Learning Legal Rules (7th edn, Oxford University Press 2011) 262-264.

⁷ Constitution of R.O.C. amend. pmbl. (2005).

⁸ Alpheus Thomas Mason and Donald Grier Stephenson, Jr., American Constitutional Law: Introductory Essays and Selected Cases (15th edn, Pearson 2009) 49-50.

⁹ See Nada Mourtada-Sabbah, ‘The Political Question Doctrine, Executive Discretion and Foreign Affairs’ (2003) 3(2) White House Studies 1, 6. E.g., Marbury v. Madison, 5 U.S. 137 (1803); Luther v. Borden, 48 U.S. 1 (1849); Pacific States Tel. & Tel. Co. v. Oregon, 223 U.S. 118 (1912); Coleman v. Miller, 307 U.S. 433 (1939); Colegrove v. Green, 328 U.S. 549 (1946) (holding the American political question doctrine as similar as the English royal prerogative).

¹⁰ E.g., Baker v. Carr, 369 U.S. 186 (1962); Reynold v. Sims, 377 U.S. 533 (1964); Avery v. Midland County, 390 U.S. 474 (1968); Powell v. McCormark, 395 U.S. 486 (1969); Hadley v. Junior Coll. Dist., 397 U.S. 50 (1970); United States v. Nixon, 418 U.S. 683 (1974); Goldwater v. Carter, 444 U.S. 996 (1979); Nixon v. United States, 506 U.S. 224 (1993).

¹¹ Case of Impositions (1606) 2 St Tr 371.

¹² E.g., R. v. Brailsford [1905] 2 KB 730; Province of Bombay v. Municipal Corporation of the City Bombay [1947] AC 58; Chandler v. Director of Public Prosecutions [1964] AC 763; BBC v. Johns [1965] Ch 32; Hanratty v. Lord Butler of Saffron Walden (1971) 115 SJ 386; De Freitas v. Benny [1976] AC 239.

¹³ (1611) 12 Co Rep 74 (Lord Coke, holding that ‘[t]he King hath no prerogative, but that which the law of the land allows him’ and therefore the Crown still possessed some prerogatives lawfully). See Mark Ryan, Unlocking Constitutional and Administrative Law (2nd edn, Routledge 2010) 45.

¹⁴ Albert Venn Dicey, The Law of the Constitution (J.W.F. Allison ed, first published 1888, Oxford University Press 2013) 188-189.

¹⁵ Compare Bate’s Case (1606) 2 St Tr 371, with De Morgan v. Director of Social Welfare [1982] 2 WLR 407, and Province of Bombay v. Municipal Corporation of the City Bombay [1947] AC 58.

¹⁶ Council for the Civil Service Unions v. Minister for the Civil Service [1985] AC 374.

¹⁷ See generally Lisa Webley and Harriet Samuels, Complete Public Law: Text, Cases, and Materials (2nd edn, Oxford University Press 2012) 137-145.

¹⁸ De Morgan v. Director of Social Welfare [1982] 2 WLR 407.

¹⁹ Vernon Bogdanor, The New British Constitution (Hart Publishing 2009) 14-18.

²⁰ Gary Slapper and David Kelly, The English Legal System (9th edn, Routledge Cavendish 2009) 266.

²¹ See Thomas M. Cooley, The General Principles of Constitutional Law in the United States of America (Little Brown 1880) 22-24.

²² 10 Annals of Cong. 595 at 613 (1800).

²³ See S. Rep. No.100-216, at 390 (1987); see also Ruth Wedgwood, ‘The Revolutionary Martyrdom of Jonathan Robbins’ (1990) 100 Yale L.J. 229, 229-368.

²⁴ Louis Fisher, ‘The Law: Presidential Inherent Powers: The “Sole Organ” Doctrine’ (2007) 37(1) Presidential Studies Quarterly 139, 141.

²⁵ Louis Fisher, The Supreme Court and Congress: Rival Interpretations (CQ Press 2009) 15.

²⁶ Compare Luther v. Borden, 48 U.S. 1 (1849), with Coleman v. Miller, 307 U.S. 433 (1939).

²⁷ Cohens v. Virginia, 19 U.S. 264, 404 (1821).

²⁸ Cf. Roger Cotterrell, The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy (first published 1989, University of Pennsylvania Press 1992) 22-25.

²⁹ But cf. Robert L. Clinton, ‘Precedent as Mythology: A Reinterpretation of Marbury v. Madison’ (1990) 35(1) Am. J. Juris. 55, 55-86.

³⁰ Marbury v. Madison, 5 U.S. 137 (1803).

³¹ Ibid.

³² See generally Issac Unah, The Supreme Court in American Politics (Palgrave Macmillan 2009) 1-24.

³³ Cf. Louis Henkin, ‘Is There a “Political Question Doctrine”?’ (1976) 85 Yale L.J. 597, 597-625.

³⁴ Ibid 622-624.

³⁵ Kermit L. Hall, James W. Ely, Jr. and Joel B. Grossman (eds), The Oxford Companion to the Supreme Court of the United States (Oxford University Press 2005) 57.