Unjust laws, uncertain future: Taiwan’s struggle against authoritarian infiltration

Joshua Tai
Tai & Liang Law firm, Taipei
lawyer@cdlaw.com.tw

Mencius[1] was once asked by his student, Tao Ying, about the dilemma of duty and familial loyalty: ‘If the wise King Shun’s father committed murder, what would Shun do?’ Mencius replied that Shun would permit the prosecutor to follow due process. When Tao Ying questioned whether Shun would intervene, Mencius explained that Shun, as an ideal king, could not obstruct the law. Instead, he would abdicate his throne, forsaking his royal duties as easily as discarding old shoes. Shun would then retreat to a remote seaside with his father, ensuring peace, while relinquishing his identity as a king.

This story highlights the Eastern philosophical tension between moral obligations to one’s family and adherence to legal frameworks. Unlike the Western prioritisation of law as a cornerstone of justice, Mencius presents a contrasting ideal, where familial bonds can supersede legal constraints, reflecting a uniquely Eastern perspective.

In contrast, when Socrates was imprisoned for impiety and corrupting the youth, he had an opportunity to escape. Socrates’ student, Crito, urged him to flee, assuring him that his friends and students could bribe the guards and secure his safety in another city. Despite this, Socrates chose to drink the hemlock poison, respecting the laws of Athens. Socrates believed that escaping would undermine the authority of the law and contradict his own teachings, namely that a virtuous citizen must act with integrity.

The stories of Mencius and Socrates present a profound question: should unjust laws be obeyed? In other words, when laws are created through improper procedures or lead to the erosion of a nation’s judicial system, should they still be enforced?

These philosophical reflections remain relevant today as nations face dilemmas between upholding the law and addressing laws that threaten justice. Taiwan’s recent constitutional crisis exemplifies this tension, raising profound questions about the duty to obey laws influenced by authoritarian forces.

Taiwan is currently grappling with this dilemma.

The constitutional crisis in Taiwan

On 20 December 2024, legislators from the Chinese Nationalist Party, also known as the Kuomintang (KMT), with support from the Taiwan People’s Party, passed the controversial Constitutional Court Procedure Act.

Taiwan’s Constitutional Court, also known as the Justices of the Constitutional Court, plays a vital role in ensuring the supremacy of the Taiwan Constitution. Unlike the United States Supreme Court, which handles a wide range of legal disputes, Taiwan’s Constitutional Court focuses exclusively on constitutional matters, including the interpretation of the Taiwan Constitution, disputes over jurisdiction among government institutions and the annulment of unconstitutional laws. This system ensures that constitutional principles are upheld, serving as a crucial check against legislative and executive overreach. The current amendment threatens to paralyse this system, leaving constitutional disputes unresolved and jeopardising Taiwan’s democratic stability.

According to Taiwan’s newly amended Constitutional Court Procedure Act, a ruling by the Justices now requires participation by two-thirds of the total statutory number of Justices, rather than two-thirds of the current serving Justices. Additionally, declaring a law unconstitutional now requires agreement by at least two-thirds of the total statutory number of Justices, an increase from the previous requirement of a majority of the current serving Justices.

This amendment effectively paralyses the operation of the Constitutional Court. If the number of serving Justices falls below ten due to rotation, illness or inability to serve, the court will immediately become non-functional. Even more troubling, if all ten required Justices are present but just one dissents, the decision of the remaining nine can be vetoed, allowing a minority of Justices to control the court’s decisions.

A comparison of the approval by the required number of Justices for constitutional litigation rulings under the old vs the new system is provided in the table below.

At the time of writing (28 December 2024), there are only eight serving Justices due to the rotation process. On 25 December 2024, all seven nominees for Justices proposed by the President of Taiwan were rejected by the legislature. As a result, under the new law, the Constitutional Court is completely unable to function.

This creates a legal ambiguity, where a law’s constitutionality cannot be clearly determined under the new requirements. Such an outcome could undermine public confidence in the judicial system and disrupt the Constitutional Court’s ability to perform its critical function of safeguarding constitutional governance.

This controversial amendment was passed by legislators from the KMT, which holds 52 seats, in collaboration with the Taiwan People’s Party (eight seats), barely exceeding a parliamentary majority. (For reference, the ruling Democratic Progressive Party (DPP) holds 51 seats.) The legislative process was fraught with controversy. On the day the bill was passed, tens of thousands of protesters gathered outside the Legislative Yuan (Taiwan’s unicameral legislative body) in what has been dubbed the ‘Bluebird Movement’ (the author among them), but they were unable to block the bill’s passage.

The implications

The KMT legislators passed this counterproductive bill largely because they fear they may never regain power. (The DPP won the 2024 presidential election, ensuring 12 consecutive years of governance.) Moreover, in May, the KMT and the Taiwan People’s Party collaborated to pass amendments to the Legislative Yuan Functions Act, nearly all of which were declared unconstitutional by the Justices. This new law, with its stricter standards for declaring unconstitutionality, can be seen as both a countermeasure against the ruling party and a retaliation against the judiciary. It is almost as if the KMT legislators are saying, ‘Now the Justices won’t be able to declare any laws unconstitutional’.

Even more concerning is the involvement of foreign influence. The leading legislator behind this amendment, Weng Xiaoling (翁曉玲), a Taiwan citizen, has openly identified as Chinese rather than Taiwanese. During a legislative inquiry, she declared, ‘China’s territory includes Taiwan, so isn’t it natural for China to reclaim Taiwan?’[2]

Beyond the KMT’s retaliation for its inability to regain power, this amendment reflects a deeper infiltration by foreign forces. While China may lack the military power to conquer Taiwan, undermining Taiwan’s democracy, such as rendering its Constitutional Court non-functional, still counts as a victory. If Taiwan’s people lose faith in the court, China achieves its goal.

The ruling DPP plans to counteract these developments through various measures. However, even a successful counteraction will lead to further chaos, eroding public trust in the judiciary and furthering China’s objective of destabilising Taiwan.

Returning to the initial question: if a law is passed as a form of retaliation or as a result of foreign influence, do people still have a duty to obey it? Does the phrase ‘an unjust law is still a law’ hold true in such cases? When I first studied law, I naively believed that all laws must be obeyed. But now, I understand that every case has its own unique story and applying laws uniformly and indiscriminately can result in injustice.

The newly passed Constitutional Court Procedure Act demands immediate international attention. Taiwan stands at the forefront of the global struggle against the erosion of democratic values by authoritarian regimes. China’s influence is evident in its persistent efforts to destabilise Taiwan’s democracy, freedom and rule of law. International organisations and democratic allies must act now by closely monitoring Taiwan’s legal and political developments, offering diplomatic support and raising awareness about these challenges on global platforms. A failure to act risks emboldening authoritarian regimes worldwide, with repercussions that may extend far beyond Taiwan, undermining democratic resilience across Asia and even the Pacific.

I believe in the resilience of Taiwan’s democracy to defend itself. However, Taiwan also has vulnerabilities, particularly its use of the same language as China, Chinese. While Taiwan uses traditional Chinese characters, China uses simplified Chinese, which makes Taiwan especially susceptible to misinformation. As a result, Taiwan experiences the highest frequency of fake news attacks from China, globally. This KMT-led amendment deserves your attention. We cannot let Taiwan, a beacon of democracy and freedom in the Mandarin-speaking world, fall into authoritarianism and communism. After all, China’s Chief Justice, Zhou Qiang, has already stated, ‘In China, courts must follow the leadership of the Communist Party’.

Will Taiwan’s courts one day follow the Communist Party as well? If that day comes, it would signify the collapse of the rule of law in Taiwan. Laws created under authoritarian influence, devoid of justice and proper procedures, cannot command the moral obligation of obedience. Just as unjust laws should be challenged, Taiwan’s citizens must continue to uphold democratic values and resist the erosion of judicial independence. Taiwan’s fight is not only for itself, but is also for the preservation of democracy in the Mandarin-speaking world.