| Summary: | This thesis explores constitutional judicial review in the Republic of China (Taiwan), assessing the expansion of judicial power between 1990 and 1999. The core of this research project focusses on the Council of Grand Justices of the Judicial Yuan, and the ability of these fifteen Justices to impose their collective will upon other branches of government through judicial decisions that sometimes override executive actions and legislative acts. The power of constitutional judicial review has de jure rested exclusively with the Judicial Yuan under Article 78 of the 1947 Constitution of the Republic of China, and the constitutional text places no limitations on the use of such judicial power. On a de facto basis, however, the power of the Judicial Yuan has varied considerably since 1947, setting an interesting research puzzle and inspiring the research questions of this thesis: What are the shifting limitations of judicial power? When do Justices review with deference and what encourages judicial assertiveness? In engaging with these questions, this thesis reconceptualises and contextualises Taiwan's institutional arrangements for constitutional review through strategic accounts of judicial decision-making and the examination of the role of judicial audiences. Building upon Ginsburg's seminal study of Taiwanese courts and his diffusion-of-political-power model, the following chapters will extend the study of constitutional judicial review in a new direction. The diffusion of political power through competitive elections only accounts for the strengthening of the power of the Judicial Yuan in comparison to other competitive branches of government as a general trend. It leaves unexplained why the all-important 1990 case - Judicial Yuan Interpretation No. 261 [1990] - precedes democratic transition, and why the practical exercise of judicial power then fluctuates between deference and assertion. In order to understand Judicial Yuan Interpretation No. 261 [1990] as the original constitutional moment of judicial power in Taiwan, and to assess the important subsequent variations within a more general trend of judicial power expansion, this thesis will expand strategic accounts of judicial decision-making into the realm of an alliance between judiciary and public opinion. The interplay between public support for the Judicial Yuan as an indirect enforcement mechanism and the Justices' strategic alignment with public opinion as a basis for building institutional legitimacy is then further reinforced by the more traditional elements of Chinese legal culture, such as Mencius' indirect democracy. Evidence for these arguments is offered using a combination of quantitative approaches and a series of interviews, as well as special attention to archival research. These combine to offer the researcher a wealth of new material in support of the key argument that the shift towards judicial supremacy in Taiwan during the 1990s is rooted in the Justices' ability to decide strategically and align themselves with public opinion. This thesis is therefore original in its empirical impetus and unique as regards the novel pieces of evidence it unearths and analyses, in particular the discovery of a repository of official judicial interviews in the National Central Library of Taiwan. In addition, the theoretical ambition of this thesis combines strategic approaches and the study of judicial audiences to Taiwanese constitutional law for the first time.
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