Taiwan: A Patchwork Constitution
The unfolding debate about constitutional amendments in Taiwan is propelled both by the ruling Kuomintang’s election loss and the Sunflower Student Movement. At this constitutional moment, however, some critical issues remain highly controversial. The outcome will ultimately depend on the ebb and flow of the two major parties’ political bargaining power in the next few months.
History of Constitutional Amendments in Taiwan
Taiwan - or Republic of China (ROC) - is no stranger to constitutional amendments. In fact, the country has gone through seven rounds of constitutional amendments since democratization in 1987. Part of the reason is that the ROC constitution, enacted in China, was originally designed for a geographically huge country, not for a small island state of twenty-three million. Constitutional revisions in the past were mainly led by political elites, particularly the Kuomintang (KMT), with citizens or grassroots organizations having little, if any, impact. Nevertheless, this situation appears to change slightly in the recent discussion over constitutional revision, in which the bottom-up voice seems to have played a role.
The recent Constitutional Moment
Constitutional moment emerges as a result of political transformation, power redistribution or constitutional dysfunction. These events not only trigger constitutional change but also affect the ultimate choice of constitutional design. In Taiwan, such major events included from below, the Sunflower Student Movement (the Movement) that heralded the call for another wave of constitutional revision through a series of protests in the Spring of 2014; while from above, the ruling KMT’s miserable loss of local election in November that rendered constitutional revision consistent with political interests.
Starting from March 2014, several students occupied the congressional hall to protest the Cross-Strait Service Trade Agreement, which aimed at liberalizing trade between Taiwan and China and was allegedly “passed” in 30 seconds without fully disclosing the content beforehand. Despite the questioned legitimacy of the occupation, the Movement was widely supported by the younger generations and civil society. One of its major appeals was the initiative to revise the ROC Constitution to hold the government, including both the legislature and the executive, more accountable to the people. Although the Movement ended in three weeks, it led to the KMT’s catastrophic loss of the local election, the biggest defeat the KMT has encountered ever since democratization. Due to this fiasco, it is believed that the KMT would also lose the presidential election to be held in January 2016, since the local election can be perceived as a vote of no confidence. This prospect makes the current semi-presidential system much less appealing to the KMT. By contrast, the parliamentary system, originally prescribed in the 1947 Constitution and later suspended by constitutional amendments, becomes a better choice for the KMT that has always been the largest party in Congress. To achieve this goal, constitutional revision suddenly becomes a hot issue in Taiwan.
Revision of the System of Government and the Electoral System
In the past several months, politicians and NGOs have suggested a variety of issues for revision with a focus on three major topics: the central governmental system (power redistribution between the executive and the legislature), the electoral system, and the threshold to pass the constitutional amendment itself. Some proposals have received inter-party support while others have remained controversial.
To begin with, issues revolving around the system of government include 1) whether Taiwan should restore the parliamentary system, 2) whether the legislature should have the power to veto the nomination of the President of the Executive Yuan/Branch, 3) whether the President of the Executive Yuan should have the power of counter-signature, and 4) whether to abolish the Control Yuan (roughly equivalent to the Ombudsman) and the Examination Yuan. In fact, the first three issues are mutually interwoven. Since the KMT is unlikely to win the presidential election, it definitely wants to change the current governmental structure from semi-presidential to parliamentary system. If this proposal fails, the alternatives would be to strengthen the legislative power and weaken the presidential power, reflected in the second and the third proposals. Essentially, all these proposals aim at further expanding the legislative power, which is controlled by the KMT, at the expense of the presidential power, which after 2016 will supposedly be controlled by the opposition party, the DPP. Given the political reality, it is understandable that the two parties have not yet come to terms with these issues.
On the other hand, the two parties did reach some rudimentary consensus with respect to the revision of the electoral system, including the Mixed Member Proportional electoral system, the number of legislators elected from nationwide constituency, the threshold to allocate these legislative seats as well as the voting age. It seems that both parties agree to lower the voting age from 20 to 18 and to lower the threshold to allocate the increased number of seats. It is clear that these issues receive more support than others because the revision of the electoral system does not obviously favor one party over the other. It is true that the KMT is still the largest party in Congress to date but the DPP is expected to win more seats in the future, given the unpopularity of the KMT in the past two years. Even though it is difficult to predict which party would benefit more from the revised electoral system, reform is still in the legislators’ interest regardless of their party affiliation, since more seats will become available.
Lastly, there are some proposals that try to lower the threshold to pass constitutional amendments and to grant citizens the right to initiate constitutional amendments (currently they only have ratification power through referendum). The amendment process should find a middle ground that is neither too rigid nor too fluid, as rigidity prevents a constitution from evolving with time while being too fluid may damage the status of a constitution as the supreme law. Currently, amendments need to be proposed by one-fourth of the legislators, passed by three-fourths of the members present with a quorum of three fourths of the total membership as well as approved by half of the electorate - a procedure that is indeed cumbersome.
Will the Process get Started?
The call for constitutional reform in the past several months stems mainly from political calculation of both parties. The need to buy political risk insurance becomes the major reason the KMT would like to restore the parliamentary system through constitutional amendments, since it is likely to lose the presidential election to the DPP in 2016. No wonder it prioritizes the redistribution of political powers between the legislature and the president. By contrast, the DPP tries to increase the number of eligible voters by lowering the voting age, since it is more popular among younger generations. In other words, since the amendment proposals seem to serve party interests, it is certainly possible that they will reach agreements as to whether to amend the ROC Constitution or not. Moreover, the pressure from civil society cannot be ignored. Many NGOs have put forward their own constitutional amendments and advocated for further participation during the process.
Nevertheless, serious disagreements continue to exist between the two parties. Procedurally, whether, and to what extent, to include the civil society and citizens is a major issue. The parties also disagree on whether a congressional committee would suffice to develop the constitutional amendment or holding a national affairs conference is necessary. On the one hand, public participation that the DPP is pushing for can effectively reduce the impact of personal interests and biases. Normatively, constitution-making is also deemed undemocratic without the meaningful participation of “We the People”. On the other hand, the KMT’s secrecy strategy is based on the pragmatic consideration that it might indeed facilitate negotiation and prevent ‘unnecessary passion’. Therefore, the two parties need to strike a balance between the two extremes. Substantively, moreover, the two parties are yet to reach consensus on the core content of the constitutional amendments. Accordingly, whether the process will be concluded ultimately hinges on KMT-DPP negotiations.
Constitutional Amendment à la ROC - by whom, when and how?
Undoubtedly, the KMT headed by Eric Li-luan Chu and the DPP led by Ing-wen Tsai are the two major actors during the amendment process. Civil society and other small parties may play a role but their influence will likely be peripheral. The two major parties would reportedly launch the constitutional amendments project in early April and propose the bill in late May or early June. This is because both parties want to pass the amendments through referendum in January 2016, along with the next general and presidential elections.
As to the disagreements, DPP chairwoman Tsai has suggested a two-stage process, where both parties would endeavor to reach consensus one step at a time, allowing them to pass the less contentious sections one by one. Nonetheless, whether this proposal will work is doubtful, since the KMT has claimed that no amendments would be passed unless the presidential power is simultaneously weakened, which is precisely what the DPP opposes.
The State of Play
Reason, passion, and interest are three key elements in constitution-making. In Taiwan, although the ROC Constitution has been frequently amended, most amendments were enacted out of partisan interests to consolidate political powers. With heightened civil society participation this time, there is hope that reason will prevail. From recent political developments, however, the prospect is bleak not only because NGOs are excluded from inter-party negotiations but also because partisan interests still play a pivotal role. Furthermore, since Congress monopolizes the power to propose amendments, it has ample room to abuse such power by prioritizing its own institutional interests rather than the long-term welfare of the society as a whole. As always, the pressure from China also overshadows the debate since constitutional change continues to be politically highly sensitive.
Chien-Chih Lin is an SJD candidate at University of Chicago with a focus on "The Judicialization of Politics in New Democracies". His academic interests include Constitutional Law, Comparative Law and Judicial Politics. His work has appeared in The American Journal of Comparative Law and National Taiwan University Law Review.