The Amendability of Taiwan’s Constitution is Put to the Test
In November 2022, voters will decide whether to lower the voting age and age of candidacy for certain positions in Taiwan. Beyond the substantive issues, the vote will test a lingering question since the reform of Taiwan's constitutional amendment procedure in 2005: are the procedural requirements too stringent to meet? If this reform passes, it could signal the revival of incrementalist constitutional amendments in Taiwan. But given political party dynamics in Taiwan, structural reforms, and those concerning the clarification and expression of Taiwan’s constitutional identity as a full sovereign state, are likely unattainable under this approach - writes Professor Yen-tu Su
On 26 November, voters in Taiwan will cast their ballots not only for local elections, but also on the first constitutional referendum in Taiwan’s history. Taiwan voters will decide whether to ratify a proposed constitutional amendment that would lower the voting age from 20 to 18, and the age of candidacy from 23 to 18 (except as otherwise required by law, such as the constitutional requirement that candidates for President and Vice President be 40 years or older). This vote has more to it than meets the eye, as it will also provide some answers to a critical question raised since Taiwan changed its constitutional amendment rules in 2005: Is it actually possible to amend or revise Taiwan’s Republic of China (ROC) Constitution, or are the procedural requirements too stringent to meet?
The Post-2005 Process and Politics of Constitutional Amendment
Thanks to the 2005 constitutional amendments, Taiwan has one of the most difficult constitutional amendment processes in the world. Under the existing rules, a constitutional amendment bill can only be initiated by one-fourth of the members of the Legislative Yuan (LY), Taiwan’s unicameral parliament. To become part of the Constitution, an amendment first must pass the legislature by a three-fourths vote with a quorum of three-fourths of members, and then be ratified in a constitutional referendum held six months afterwards by an absolute majority of eligible voters. The sheer stringency of these formal rules has led many commentators to view constitutional reform as a mission impossible, and 2005 remains the last time the ROC Constitution was amended.
Things were very different before 2005, as Taiwan underwent six rounds of constitutional amendments between 1992 and 2000—all by a single representative entity known as the National Assembly. To some extent, these amendments (including those made in 2005) tailored the old ROC Constitution to fit Taiwan’s new democracy, but still left much to be desired. Taiwan, for instance, is referred to in the amended Constitution merely as the “free area of the ROC,” and much of the idiosyncratic five-branch scheme of the ROC Constitution—i.e., the separation of the executive, legislative, judicial, examination, and control branches of the government—remains intact. Driven mainly by a popular movement to cut the size of the LY in half, the 2005 amendments halved the LY seats from 225 to 113, extended the legislative term from three to four years, and reengineered the mixed-member majoritarian system for the parliamentary elections.
Proposals for profound changes have very little chance of passing through the legislative tunnel whereas piecemeal fixes are not bound to win in a popular vote.
As part of the constitutional reform towards unicameralism, the 2005 amendments also abolished the infamous National Assembly and restructured the constitutional amendment process. The new constitutional amendment rules may be intended to make future constitutional amendments more comprehensive, more legitimate, and, as such, less frequent than before. The amendability of the ROC Constitution has since become problematic, however, because proposals for profound changes have very little chance of passing through the legislative tunnel (thanks to political polarization in Taiwan), whereas piecemeal fixes that are more likely to be proposed by the legislature are not bound to win in a popular vote.
Constitutional reformers in Taiwan had tried hard to reopen the constitutional amendment process since 2005, and they came close to success in 2015. At that time, the two major parties in Taiwan—the Kuomintang (KMT) and the Democratic Progressive Party (DPP)—had pledged to support lowering the voting age to 18. The negotiation nonetheless failed because they couldn’t agree on anything else, and the KMT rejected a deal to pass the voting age amendment alone. To the disappointment of many, the constitutional moment created by the Sunflower Movement of 2014 ended in an impasse.
The Only Proposal That Came through the Legislative Phase
Constitutional reform surfaced once again on Taiwan’s political agenda in 2020. In her second-term inaugural speech, President Tsai Ing-wen called on the LY to restart the constitutional amendment process. The voting age reform was identified as a top priority, but President Tsai also raised hopes for more amendments—including, among others, the restructuring of the idiosyncratic five-branch system of the ROC Constitution. As a first step to launch the process for amending the Constitution, the LY select committee on constitutional amendments was formed in September 2020. This select committee is responsible for reviewing constitutional amendment bills, and its 39 seats are proportionally distributed among party caucuses in the LY. By March 2022, a total of 87 constitutional amendment bills had been introduced and referred to the select committee. In the meantime, the DPP, the KMT, and the other two minor parties in the LY all managed to iron out inter-party disagreements and publicized their separate reform packages. The less rushed timeframe also contributed to the improvement in constitutional engineering. The voting age reform, for instance, has turned into a project seeking to lower not only the voting age, but also the age of candidacy.
Under pressure to deliver, the select committee decided to forgo other potential bills and bring forward one that needed no further negotiation: the bill on voting age reform.
President Tsai, however, took a hands-off approach to constitutional reform and let the LY leadership call the shots. LY Speaker You Si-kun had long planned to schedule a floor vote on constitutional amendment proposals in late March 2022. By the time the select committee began to review the constitutional amendment bills in January 2022, there was not much time left before the self-imposed legislative deadline. There was another problem: KMT lawmakers boycotted the committee review process because they felt slighted by their DPP counterparts. Under pressure to deliver, the DPP-dominated select committee decided to forgo other potential bills and report to the LY only one that needed no further negotiation: the bill on voting age reform. This was a last-minute attempt to save the long-overdue voting age reform from being bogged down in the political bargaining process again. But it was also a bold move as it dared the KMT lawmakers to torpedo an amendment proposal they proclaimed to support. To the surprise of many, this hard ball strategy worked. On 25 March, the LY passed the amendment proposal by a vote of 109-0. Only 4 LY members abstained.
The Upcoming Referendum Battle
Soon after the voting age amendment was cleared by the LY with near unanimity, KMT Chair Eric Chu Li-luan commented that the upcoming constitutional referendum should be held on a separate date from the scheduled nationwide local election day on 26 November. Chair Chu later backpedaled, and the Central Election Commission (CEC) scheduled the constitutional referendum for 26 November without raising too many eyebrows. The whole point for the LY to clear the amendment proposal no sooner and no later than late March, after all, was to enable the CEC to do so. In addition to saving costs, this would allow the constitutional referendum to coincide with the nationwide local elections that usually have a voter turnout rate of about 65%. If the constitutional referendum is held on a separate date, however, turnout would be a huge unknown.
While it is a consensus issue for political elites in Taiwan, the voting age reform cause has long been a tough sell among ordinary people.
For the amendment to be ratified, an absolute majority of the electorate—that is, more than 9.65 million Taiwanese voters—would have to vote “yes” on the referendum. While it is a consensus issue for political elites in Taiwan, this reform cause has long been a tough sell among ordinary people. In a 2021 large-scale survey conducted by Taiwan’s Election and Democratization Study (TEDS), for example, only 42.5% of respondents supported lowering the voting age, whereas 35.3% and 17.1% disagreed and strongly disagreed, respectively. Public opinion is less of a concern in many democracies where voting age reform could be accomplished through elite-driven legislation or constitutional amendment. It nonetheless presents a major challenge in Taiwan, because the proposed amendment simply could not be ratified without overwhelming support from ordinary voters.
According to the same 2021 TEDS survey, 56.5% of the DPP supporters were already in favor of the reform, but 67.3% of the KMT supporters were against it. This apparent partisan divide is arguably shaped by a prevailing view that, being “Taiwanese by nature”—that is, people who instinctively identify themselves as Taiwanese and Taiwanese only (and not as Chinese) when asked about their national identity—young voters lean more to the pro-independence DPP than to the pro-unification KMT. To the extent that many KMT voters oppose the enfranchisement of 18-20 year olds, mainly for fear of empowering their rivals, extra effort might be needed to persuade them that any obstruction of the reform would only further alienate their party from the youth and do more harm than good to its electoral fortunes. It remains to be seen whether an all-out “yes” campaign in the coming few months can win the hearts and minds of Taiwan voters across the board, but many in Taiwan appear to have planned to lay blame on the KMT if the ratification fails.
The Amendability Question Revisited
Taiwan has lagged behind Japan and South Korea in lowering voting age, but it has everything to do with the politics of constitutional reform in Taiwan and little to do with cultural differences among East Asian democracies. Since 2018, Taiwan has lowered the voting age for ordinary referendums to 18 with the help of a textualist interpretative maneuver that literally construed the constitutional provision on voting age as not applicable to the referendum process. If the proposed amendment fails, many supporters of the reform would probably opt for an even more radical constitutional workaround: implementing the new voting age through legislation and letting the ingenious Taiwan Constitutional Court (TCC) find ways to square the circle. After all, some law professors in Taiwan already suggested that the constitutional provision on voting age be re-construed not as a threshold for political maturity but as a guarantee that citizens of 20 years and older be eligible to vote. Under this view, it is unnecessary and even counterproductive to lower the voting age through constitutional amendment.
In addition to ending the amendment drought and proving the naysayers wrong, the success of the voting age amendment may set a precedent and encourage reformers to try the same playbook again...
In addition to ending the amendment drought and proving the naysayers wrong, the success of the voting age amendment may set a precedent and encourage reformers to try the same playbook again when circumstances permit. In other words, there could be a revival of incrementalist constitutional amendments in Taiwan. However, structural reforms (such as the reengineering of the five-branch system, the parliamentary electoral system, the constitutional amendment process and the like) are probably unattainable under this approach, so are those concerning the clarification and expression of Taiwan’s constitutional identity as a full sovereign state. The failure of the ratification vote, on the other hand, may throw Taiwan into a heated debate about what went wrong and what to do next. Several different plans and scenarios, in fact, have been conceived and contemplated by some pessimists. For instance, many people have long believed that Taiwan should write a new constitution instead. There have also been talks about petitioning the TCC to strike down the 2005 constitutional amendment rules as unconstitutional for rendering it too difficult to amend the Constitution. In any event, one thing is beyond dispute: Taiwanese people would never take the unamendability of the ROC Constitution as an answer and live with it, for the status quo is but a constitutional modus vivendi, not our constitutional destiny.
Yen-tu Su is a Research Professor at Institutum Iurisprudentiae, Academia Sinica, Taiwan. His research interests include the law of democracy, constitutional law, and judicial behavior.
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Suggested citation: Yen-tu Su, ‘The Amendability of Taiwan’s Constitution is Put to the Test’, ConstitutionNet, International IDEA, 30 May 2022, https://constitutionnet.org/news/amendability-taiwans-constitution-put-test