A Contextual Analysis of Taiwan’s Multi-origin Legal Transplantation in the Process of Democratic Transition:he Development of Judicial Review of Environmental Impact Assessment Decisions
Date Issued
2009
Date
2009
Author(s)
Chang, Ying-Lei Charles
Abstract
Abstractaiwan’s Environmental Assessment Act was enacted in the 1990s in response to mass protests that occurred during the early period of democratic transition. The design of the Environmental Impact Assessment procedure (hereafter referred to as the “EIA procedure”) of Taiwan was modeled after the American Environmental Impact Assessment procedure stipulated in the United States National Environmental Policy Act. However, the design of Taiwan’s EIA procedure has some significant differences with the United States’ EIA procedure. The most important differences can be identified as follows: ) Taiwan’s review committee (hereafter referred to as the EIA committee) is composed of scholars(2/3) and bureaucrats(1/3) who are in charge of the EIA procedure. However, the United States’ EIA procedure is conducted by the leading agency in charge of the proposed action.) Taiwan’s EIA committee has veto power over the proposed action supported by the leading agency in charge of the proposed action. However, the United States’ EIA review is purely procedural. A negative conclusion of the EIA statement does not necessarily lead to a specific result in the final decision (e.g. rejection or modification of the proposed project).he EIA procedure in Taiwan has become the main battlefield between pro-environmental and pro-development forces. The government considers the EIA procedure an impediment to economic development. More and more developmental proposals have been approved in the first stage of EIA review by the EIA committee. Since 1995, litigation has been brought by villagers living around the proposed development sites. These villagers are mobilized and supported by environmental groups.udgments of the above mentioned decisions have shown conflicting results and standards. Taiwan has transplanted Germany’s general administrative legal theories and codes into the basic structure and understanding of its administrative legal system. The decisions generated by the EIA procedure which are transplanted from the United States, with significant modification, are hard to analyze under the general administrative law system transplanted from Germany. I summarize the focal points of judicial review into three categories: 1) The Timing of Judicial Review: whether the court can review the decision of the EIA procedure before the final decision regarding the proposed action is made. 2) The Standing Requirement of Judicial Review: how to decide who has the right to litigate against the decisions of the EIA committee. 3) The Standard of Judicial Review in Substance: with which standard should the court review the decisions of the EIA committee?cholars have been introducing theories and judicial review practices with Germany and the United States as references. However, none of them can provide satisfactory and convincing answers to the above mentioned questions. I argue that the judicial review of EIA decisions in Taiwan provides a good opportunity to reflect upon the theory and practice of legal comparison and the phenomenon of legal transplantation. urists in Taiwan have been accustomed to the idea that since we transplanted our legal system from the West (mainly Germany and America), we should also find the answers from Western theory and practice to keep the consistency of the system. However, the topic examined here clearly reflects the reality that Taiwan’s legal system has multiple sources of references and questions cannot be analyzed and answered by the “follow the origin where the law was transplanted” approach. contend that jurists in Taiwan should reflect upon the methodology of comparative law and legal transplantation, which simply considers foreign legal systems and judicial practices to be superior and, therefore, can be transplanted without further consideration. review the theories of comparative law and legal transplantation in the West. I briefly summarize theories of Comparative law (Functional School, Context School and Discourse Analysis School), and theories of legal transplantation (Alan Watson, Pier LaGrand, Gunter Teubner and Maximo Langer). I propose that the use of legal comparison in peripheral countries, like Taiwan, is different from its use in the West. In Taiwan, comparison of the local legal system with Western legal systems is used to criticize and modify the local legal system. This century-long practice has been implemented under an ideology that equates modernization with Westernization. It is a mechanism of legal transplantation that serves to eliminate differences instead of seeking to understand differences, which is the function of comparative law in the West. The Taiwan example shows the importance of context and consciousness in conducting legal comparison or transplantation. I further argue that a method of legal comparison that can identify the differences and provide solutions that fit with our local context should be adopted. I identify the discourse analysis approach, which analyzes the discourses within the Western legal system, and I find that identifying the power dynamics behind the transplanted system can provide insights into how to learn from the Western legal system without being dominated by it. By understanding how the discourses in the system define and serve the needs of certain power structures, we can utilize the discourses in response to our internal power dynamic. ince the debates regarding the judicial review of the EIA decisions in Taiwan are mainly about the transplantation of the American and German legal discourses, the power dynamic structures behind the EIA system in the two countries should be investigated in order to understand the legal discourses in Taiwan. I review the history of the EIA system in the US in the context of responding to the demand of the environmental movement in the late 1960s and 1970s. Pluralism can be identified as the basic understanding behind the United States’ EIA procedure. The pluralist understanding considers the EIA procedure as an information generating process which can trigger interactions between government and conflicting social interests in the society. The standard of judicial review demonstrates the pluralist understanding. Regarding the timing of judicial review of EIA decisions, the claim of a defective EIA procedure is subjected to judicial review of the court without the final decision of the proposed action being made. As for the standing requirement, an EIA procedural defect related to individual interest provides the citizen a right to litigate. In comparison with the lenient procedural requirement of judicial review, the substantive standard of judicial review is relatively deferential to the agency in charge. further review Germany’s administrative law and the EIA system. The sophisticated conceptual system of German administrative law reflects the legal tradition of “Rechtstaat,” which presupposed state/society dualism and the ability/responsibility of defining and implementing public interests by the state organ (Parliament/administration/court). In this system the political participation should be generated in the process election. The will of the people should be expressed though the deliberation in the parliament. The purpose of people’s participation in the administrative decision-making procedure is for her/him to protect her/his personal right and provide information for the assessment of the administrative decision-makers. Procedural defects are considered irrelevant as long as the correctness of the substantive decision is not influenced. Under this strong substantive control and relatively weak procedural protection system, the implementation of the EU EIA directive, modeled after the United States’ EIA procedure, created a challenge to the system. The results of judicial review demonstrate the difference between the administrative legal system of the United States and Germany. Regarding the timing of judicial review, the BVerwG (the Federal Administrative Court of Germany) decided that the result of the EIA cannot be reviewed until the final decision of the proposed action has been made. The BVerwG considers the purpose of the EIA act to be protection of the general public and does not create a “subjective public right.” This means that defects within the EIA procedure does not create standing to a litigant. A defective EIA procedure is considered irrelevant as long as the substantive correctness of the final decision is not compromised. The plaintiff has the burden of proof to prove that without the procedural defect, the final decision should be decided in another way. The burden of proof requirement makes the challenge of EIA decisions against the agencies almost futile. I argue that the phenomenon should be explained by the fact that Germany has already set up a very strong environmental protection legislation through the spatial planning system and other licensing procedures before the transplantation of the EIA system. The planning system emphasizes in the comprehensive consideration negotiation between influential social actors on the general planning stage, and avoids adversarial confrontation in licensing procedure of the single installation. I identified the power dynamics behind the EIA system in Germany as reflecting the structure of corporatism and parliamentary democracy. In the social corporatist system important decisions are made in the abstract level through the negotiation between parties or hierarchical social institutions that have been recognized by the society as representative of different kinds of interest. ased on the above observations, I argue that jurists in Taiwan should realize the currently developing judicial review of EIA decisions is actually constructing the state/society relationship in this stage of the democratic transition and consolidation. The design of the EIA system shows the context of democratization in Taiwan. The design of the EIA review committee and the veto power assigned to it is a mechanism of trust-building that was created in response to mass environmental protests during the early period of democratic transition in the 1980s. The protests were not only demanding more environmental protection but also venting the anger towards the then authoritarian way of governance. Neither the United States’ or Germany’s EIA systems reflect this need in their designs. I argue the judicial review of Taiwan should learn the differences among different systems. I propose that we should bricolage the discourses in the German and American legal system to respond to the context of our democratic development instead of considering the foreign legal system as natural-rule-like criteria to judge or guide our legal development. egal systems cannot be compared without understanding the historical context and the political/social system in which it is embedded. The debate over which system is superior and should be followed is meaningless in this sense. The ultimate criteria for jurists in Taiwan should be our own social/political/historical context and needs. The purpose of this analysis is to recontexualize the reified foreign legal knowledge with its power dynamic structure and historical development in order to find the possibility of utilizing foreign legal discourses as intellectual repertoire for legal arguments in Taiwan instead of as criteria for assessing and reforming our system.
Subjects
Legal Transplanation
Democratic Transition
Environmental Impact Assessment
Judicial Review
Comparative Law
Critical Legal Studies
Struturalism
Discourse Analysis
Legal Sociology
Legal Antropology
Procedural Right
Participation
Type
thesis
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