Since late 2024, the Taiwan Constitutional Court docket (TCC) has been unable to concern merits-based selections. The Court docket is neither resolving separation-of-powers disputes between the chief and legislature nor offering elementary rights safety for people. This institutional impasse constitutes a constitutional “gray gap”, the place solely the type of the authorized order exists, with none substantive protections. All proposed options carry limitations, and a few might even exacerbate reasonably than alleviate the issue because of the phantasm of legitimacy they create.
Background
To know the character of this constitutional “gray gap”, it’s important to discover its origins. It traces again to Taiwan’s 2024 nationwide elections, which created a divided authorities. Whereas the Democratic Progressive Celebration (DPP) secured a 3rd consecutive presidency, it misplaced Legislative Yuan majority to a Kuomintang (KMT) and Taiwan Folks’s Celebration (TPP) coalition. This divided authorities generated institutional conflicts and thrust the Taiwan Constitutional Court docket (TCC) into the middle of political conflicts, in the end difficult its capability to function successfully.
On December 20, 2024, however substantial public opposition, the KMT-TPP coalition handed a controversial modification to the Constitutional Court docket Process Act (CCPA). The modification imposed three interrelated constraints: a ten-justice quorum for constitutional adjudication no matter the variety of judges really sitting on the Court docket; a supermajority requirement of 9 votes to invalidate laws; and fast implementation upon promulgation, bypassing the customary three-day grace interval.
A Constitutional Court docket of dismissals
These newly enacted procedural constraints, mixed with the expiration of seven justices’ phrases on the finish of October 2024, made filling the Court docket’s vacancies crucial. Nonetheless, the Legislative Yuan successively rejected all seven of President Lai Ching-te’s nominees in December 2024 and once more in July 2025, leaving the Court docket with solely eight justices. Unable to satisfy the brand new ten-justice quorum, the TCC grew to become functionally paralyzed, unable to carry oral arguments, concern injunctions, or render selections. Thus far, it has issued no merits-based ruling for over a yr.
Worse nonetheless, the sample of rejected nominations will doubtless proceed, contemplating the still-escalating confrontation between the chief and legislative branches.
Superficially, the Constitutional Court docket continues to function. The amended CCPA offers that when the Court docket can not meet the quorum, it could dismiss instances by majority vote of sitting justices. But this procedural provision merely formalizes dysfunction: the Court docket has develop into, in impact, a Court docket of dismissals reasonably than a court docket of constitutional adjudication, unable to discharge its elementary obligations.
Defining the gray gap of legislation
This case – authorized kind with out substantive protections – constitutes what David Dyzenhaus phrases a “gray gap of legislation.” In his seminal work “The Structure of Legislation: Legality in a Time of Emergency”, Dyzenhaus distinguishes two modes by way of which states create distinctive circumstances: black holes and gray holes. The previous describes conditions the place legislation ceases to exist solely; the latter denotes contexts the place the façade or type of the rule of legislation persists with none substantive protections (p. 3). To make clear this distinction, Dyzenhaus contrasts complete cessation with half-hearted cooperation. Complete cessation includes the express suspension of legislation or exclusion of judicial evaluation, producing lawless areas. Half-hearted cooperation, conversely, maintains misleading authorized kinds – weak tribunals that serve merely as rubber stamps – creating an phantasm of authorized oversight with out real constraint (p. 3).
What distinguishes Taiwan’s gray gap is that it weaponizes process in opposition to substance: the very guidelines designed to guard constitutional integrity now stop its restoration. Not like Dyzenhaus’s grey-hole instances, the place the authorized order turns into a rubber stamp for different branches and ceases to train real decision-making, right here the constitutional order cannibalizes itself by way of its personal procedural necessities.
This self-defeating structure has already produced hostile penalties for rights safety. Contemplate, as an illustration, how a Excessive Court docket decide challenged the constitutionality of flag insult provisions as violations of free expression in 2017. The case resumed this yr, culminating in a responsible verdict rendered in late October. Proceedings continued with out awaiting constitutional judgment, illustrating how residents’ authorized avenues to guard their elementary rights have develop into merely formal reasonably than substantive.
Taiwan’s gray gap additionally illustrates why gray holes could also be extra dangerous than black holes: The lawlessness attribute of a black gap leaves the governments no selection however to acknowledge that they’re performing exterior the authorized order. As a substitute, a gray gap creates the phantasm of legality: governments working inside such an area can falsely declare that they’re performing in accordance with the authorized order.
In Taiwan’s case, this phantasm of legitimacy exacerbates separation-of-powers conflicts inside an already divided authorities.
On one hand, the KMT-TPP coalition within the Legislative Yuan accuses the Govt Yuan of refusing to implement enacted laws. Conversely, the Govt Yuan contends that some Legislative Yuan payments are unconstitutional and intends to file petitions. Whereas authorities branches retain the formal potential to provoke constitutional challenges primarily based on the separation of powers, all events acknowledge that the Constitutional Court docket at present lacks the capability to render selections.
Worse nonetheless, this phantasm of legitimacy can flip some proposed options into potential extensions of the issue.
Judicial responses
If the sample of rejected nominations continues, one potential decision can be judicial self-protection: the Court docket placing down the CCPA itself. This strategy would possibly align with Dyzenhaus’s prescription that judges ought to strive their hardest “to show gray holes into conditions that are correctly ruled by the rule of legislation” (p. 3). Nonetheless, Taiwan’s case presents distinctive complexities: ought to the Court docket – working with solely eight justices – problem the legislatively imposed ten-justice quorum requirement?
Some argue that the Court docket might invalidate statutory amendments when essential to safeguard its correct functioning and to discharge its constitutionally mandated powers. Certainly, some Constitutional Court docket justices have opined that the Constitutional Court docket shouldn’t be sure by procedural laws that blocks its constitutional features and should complement insufficient provisions to protect constitutional supremacy.
Nonetheless, a press release from three different Constitutional Court docket justices demonstrates that this place stays extremely contested. Whereas in addition they acknowledge constitutional supremacy, they contend that respecting, reasonably than invalidating, the CCPA constitutes correct constitutional guardianship. They keep that justices should observe the legally enacted CCPA and shouldn’t unconstitutionally broaden their powers. In apply, this disagreement means the Court docket can not even attain the pre-amendment threshold of six votes wanted to provoke deliberations on the CCPA’s constitutionality (beneath the earlier CCPA, two-thirds of sitting justices have been required to convene, ensuing within the six-justice threshold from eight justices).
The Court docket’s inner divisions additionally reveal the paradox inherent in resolving gray holes: whereas judicial intervention seems essential to treatment the legislative-created gray gap, such motion would concurrently reinforce this gray gap by disregarding democratic will, doubtlessly intensifying future political conflicts.
One other judicial pathway includes decentralized constitutional evaluation performed by atypical courts, with some proposing legislative reforms to authorize all courts to ignore unconstitutional legal guidelines. Whereas this might mitigate the gray gap’s hurt by empowering courts to guard elementary rights, it requires legislative reform that conflicts with the present authorized order, because the flag insult case demonstrates. Furthermore, this strategy would solely partially deal with the gray gap, because it solely protects elementary rights in particular person instances however leaves inter-branch disputes over governmental powers – that don’t instantly implicate residents’ elementary rights – unresolved. In the end, these disputes nonetheless require the Constitutional Court docket’s involvement, because the Court docket stays an integral element of the present constitutional order.
Govt pathway
One other potential resolution might come from the chief department.
After the Legislative Yuan handed the CCPA, some argued that the President, as instantly elected by the individuals with constitutional guardianship obligations, might refuse to promulgate the CCPA primarily based on the obligation to defend the Structure. Below Article 72 of Taiwan’s Structure, the President shall promulgate statutory payments inside ten days of receiving them from the Legislative Yuan. Furthermore, after a number of justices lately opposed judicial intervention, some (see right here and right here) advocate that the President refuse to promulgate unconstitutional legal guidelines whereas the President of the Govt Yuan withhold the constitutionally required countersignature (Article 37), successfully blocking such laws from taking impact.
But these options danger increasing reasonably than resolving the gray gap. As Dyzenhaus argues, even in states of exception inside the authorized order, the chief should keep away from resorting to extra-legal powers and resist the temptation to broaden the authorized gray holes (p. 4). In Taiwan’s case, whereas debate persists over whether or not promulgation and countersignature represent obligatory govt duties, it appears incompatible with the common authorized order for the chief to declare legal guidelines unconstitutional with out judicial evaluation. Even within the current gray gap, permitting govt refusal amid the Court docket’s dysfunction dangers increasing the perilous gray gap that grants the chief discretionary energy over legislative compliance. Consequently, if every department bears duty for narrowing gray holes, govt intervention appears notably hazardous.
The democratic resolution
Lastly, the subsequent election provides a possible path to resolve the gray gap. Any electoral final result reflecting present public sentiment might shift the stability of energy and facilitate the method of presidential nomination and legislative affirmation of justices. Certainly, electoral change seems to be the strategy least prone to broaden the gray gap whereas doubtlessly filling it: if electoral outcomes allow ample judicial appointments to satisfy the quorum threshold (whether or not beneath previous or new guidelines), the Court docket might then adjudicate the CCPA’s constitutionality.
Nonetheless, counting on future electoral outcomes provides no assure. Not all electoral outcomes would instantly deal with the gray gap – decision requires particular eventualities: both the top of divided authorities, or beneath divided authorities, the occasion with nomination energy forming a coalition with minor events to safe a legislative majority, or competing branches reaching a compromise pushed by public strain. Such uncertainties render future outcomes more and more tough to foretell. And in the meantime, the constitutional order should bear the continued price of paralysis.
To make certain: not all makes an attempt to resolve the gray gap are implausible. But each resolution carries inherent prices and dangers because of the gray gap’s paradoxical construction, which weaponizes authorized kind in opposition to authorized substance.
