Taiwan’s Experience Implementing the International Covenant on Civil and Political Rights: One Example of Transnational Constitutionalism*

By Judge Chen-Chou Hsu** and M. Bob Kao***

The phenomenon of transnational constitutionalism— the general concept of international laws and treaties, as well as supranational regimes and organizations, "assuming institutional as well as dialectical functions within, between, and beyond nation-states"—has spread in recent years around the world.¹ Transnational constitutions are being complied with, transnational judicial dialogues are taking place, and the convergence of national constitutions is occurring.² Examples of this include the success of supranational institutions such as the European Union and the World Trade Organization, the referencing of international law by Justice Kennedy in Lawrence v. Texas,³ and the South African Constitution requiring judicial decisions to be consistent with international law.⁴

Interestingly, Taiwan, officially the Republic of China (R.O.C.), a country that in many respects has been shunned by the international community, has been at the forefront of transnational constitutionalism. This article examines an example of that phenomenon in Taiwan as reflected in its recent adoption of the International Covenant on Civil and Political Rights ("ICCPR"). The article will examine important questions about how this process has unfolded within the Taiwanese legal framework. Specifically, how and when the judiciary has invoked the ICCPR in deciding domestic cases, what has happened when there is a perceived conflict between international and domestic law, and the methods by which that conflict has been resolved.

Examining criminal cases dealing with the death penalty and defamation where the ICCPR has been invoked, the article notes the emergence of three trends: (i) courts invoking the ICCPR to make new laws ("judicial lawmaking"); (ii) courts invoking the ICCPR as specific guidance within traditional areas of judicial discretion; and (iii) courts invoking the ICCPR to revise judicial interpretation of existing laws. Through this process, ordinary courts in Taiwan also may have gained new powers of constitutional interpretation, which could cause tension since this power is currently the exclusive province of the Grand Justices of the Constitutional Court.⁵