3 - Proportionality in Taiwan

Summary

This chapter argues that, first, the adoption, application, and adaptation of proportionality in Taiwan mirror the nation’s political development from an authoritarian regime to a stable democracy. Second, the TCC has developed its own variant of Proportionality Analysis by concurrently using the tiered-standard of review, applied by the United States Supreme Court, in equal protection cases. In the words of a sitting TCC Justice, proportionality in Taiwan is like a restaurant with a German menu that also serves American dishes. Third, the application of proportionality in Taiwan, particularly the four subtests, is similar to that applied in many other jurisdictions: While the Taiwan Constitutional Court occasionally strikes down legislation for failing the legitimacy, suitability, or balancing sub-tests, most laws are invalidated for failing the necessity subtest. In practice, the Constitutional Court invokes proportionality mostly in the domain of civil and political rights, which is similar to many other apex courts in the world, and it has less frequently used PA to rule against the government in cases concerning socioeconomic rights.