COMMENTARY ON TAIWAN CONSTITUTIONAL REVISION

UNCLAS SECTION 01 OF 03 TAIPEI 002321

SIPDIS

DEPARTMENT FOR INR/R/MR, EAP/RSP/TC, EAP/PA, EAP/PD -
ROBERT PALLADINO
DEPARTMENT PASS AIT/WASHINGTON

E.O. 12958: N/A
TAGS: OPRC KMDR KPAO TW
SUBJECT: COMMENTARY ON TAIWAN CONSTITUTIONAL REVISION

In an article published by the centrist, pro-status quo
China Times May 23, Professor Chu Yun-han of the
National Taiwan University's Department of Political
Science commented on the absurdity of Taiwan's
constitutional reforms. The following is a full-text
translation.

"Fantastic Story of Taiwan's Constitutional Reforms"

"The processes of Taiwan's constitutional reforms have
always been full of paradoxes, absurdity, and
surprises. One cannot help but sigh for the paradoxes.
For example, the rules and thresholds governing the
procedures to amend the Constitution look very rigid on
the surface. However, through manipulations by the
political parties the negotiation, deliberation, and
voting [for the amendments] have been terribly rough
and rash. Every time the revisions were beautified by
slogans such as `realizing political powers of the
people,' `deepening democratic reforms,' and `for long-
term national security and stability.' In fact, the
actual results [of these revisions] were often damages
made to the functioning of democratic governance by the
constitutional rule. And the power-and-responsibility
relations between constitutional organizations became
more blurred while the check-and-balance and the
supervision mechanisms more fragmented. The real
problems regarding the power-and-responsibility
imbalance that needed to be resolved by constitutional
amendments were totally avoided because they did not
meet the power-expanding demands of the top leadership.
Issues, which obviously could be regulated by policies
and laws, had to be upgraded to the constitutional
level. After a whole lot of fascinating statements
were added to the Constitution, nobody cares about how
to implement these at the policy and law levels.
Seeing the absurd developments makes one too sad to
cry. For example, proposing constitutional amendments
has long been the favorite political-reform `image
engineering' pursued by political leaders. They could
always find alternative prescriptions to deal with
trivial issues. Then presented them as `critical
reforms.' These flashy `image engineering' projects
ended without exception into constitutional `messes.'
Almost every round of constitutional reforms would
leave seeds for future constitutional disputes or
governance crises. A new round of revisions was often
proposed to remedy mistakes and failures made during
the last round. Every time the Constitution was
revised, its legitimacy and authority would be reduced.
One does not know where this repetitive cycle will end.
Can the seventh constitutional revision, which is soon
to go through the procedure of ratification by the
National Assembly (NA),escape this vicious cycle?

"Two things are very bizarre with regard to the
constitutional reform process this time: First, over
the past ten years, the Legislative Yuan (LY) has been
tying its hands and has never exercised its authority
to amend [Taiwan's] Constitution. But look at the
masterpiece of its first effort in leading
constitutional revision: it has passed a constitutional
proposal with regard to congressional reforms, which
will definitely seriously undermine the Legislative
Yuan's role in representing the diversity of our
society and undercut its legislative and supervisory
functions. Second, many political figures used to
regard public participation in constitutional reform as
the highest objective for democratic reforms, and as a
result, they tried their best to promote the proposal
of 'abolishing ad hoc National Assembly
representatives' and replaced it with a 'public
referendum on constitutional reform.' They also tried
to package the referendum as the main course of the set
meal of constitutional reform this time and define the
ad hoc National Assembly election as a 'substantive'
referendum. But in the end, the less than one fourth
of the voter turnout rate showed that this
constitutional reform lacks justification in a
democratic sense and has formed a constitutional wound
that is hard to mend.

"Incredibly ridiculous images have appeared from the
beginning till the end of the current constitutional
revision process. For one thing, this full-of-flaw
amendment package was rashly adopted during an
extraordinary LY session under the atmosphere of an
election campaign and the pressure from a populist
mobilization. During the process, party leaders became
wimps and lawmakers all thought they could get away
with it and refused to take any political
responsibility facing the solemn issue of
constitutional reform. Masterminds of the LY caucuses
deliberately narrowed down the space for extensive
consideration and rational debates. Only a few
hearings by academics and experts were casually held as
a matter of form. Even though an overwhelm majority of
law and political science scholars raised questions
about the improper reduction into half of LY seats and
the unreasonable design of the Japanese-style two-vote
system, nobody listened.

"Second, the revision process is filled with political
tricks played to fool the voters. For example, the way
of a forced tie-in sale is used this time. Amendments
that have no systematic relations whatsoever to each
other, e.g. changes to the legislature election system
and changes to the constitutional revision procedures,
or the reduction of LY seats and the extension of LY
members' term, were forcibly bound together. These
subjects should have been proposed, discussed and voted
on as separate constitutional amendments. Voters
should have had opportunities to express their pro and
con positions on each of the proposals during the
ratification process. Then members of the ad hoc
National Assembly should make decisions on each
amendment. But now normal goods (e.g. extending
lawmakers' term to four years) and flawed goods (e.g.
Japanese two-vote system) and bad goods (reduction in
half of LY seats) are sold in one package and cannot be
returned or changed. More ridiculous is that the
rationality of the two-vote system simply had to be
sacrificed in order to accommodate the populist appeal
of `reducing [LY] seats in half'.

"The worse tricks to fool the public are to use
simultaneously two sets of entirely different and
contradictory legal logic to formulate the ad hoc NA
elections. Then selectively apply the two sets of
legal logic in order to create the largest space for
maneuvers by the manipulators. Whether the nature of
the latest ad hoc NA elections was a selection of
representatives to revise the Constitution or a
substantive `referendum on constitutional amendments'
had been dubious until before the balloting day. On
the one hand, the elections were dealt with according
to standards for elected organizations. Therefore, no
threshold for the minimum turnout rate was set. The
election organizing agencies requested candidates to
pay warranty deposits based on the Election and Recall
Law. The LY approved budgets and compensations to be
paid for the one-month NA sessions accordingly. On the
other, the special ballots printed by these agencies
following the National Assembly Members Election Law
showed the `pro' and `con' positions of the political
parties. This can either be interpreted as a
`political promise,' which is not legally binding, or
be understood as a `compulsory mandate,' which is
legally effective. However, since the National
Assembly Functions Exercising law was still lying at
the LY, these two possibilities were still under a
legally unstable status at the moment when the voters
cast their ballots. As a result, what is the legal
effect of these ballots was later determined by the two
dominant parties at the LY after the elections. This
kind of major legal blunders is unthinkable in any
normal democratic nations.

"The LY only passed the National Assembly Functions
Exercising Law after the NA elections. But there is a
new controversy. On the one hand, the LY set
afterwards the nature of the elections as a `compulsory
mandate." So NA members shall vote by showing their
names. If they vote in violation of their party's
campaign promise, their votes will be treated as
invalid votes. But the LY left a remnant. When
calculating whether the yes votes have passed the three-
forth threshold, these invalid votes will be counted in
the total votes. This has worried some political
figures that the constitutional amendments may not be
adopted as planned. They harshly criticized the
National Assembly Functions Exercising Law passed by
the LY. They insisted that the NA elections have
always been a substantive `referendum on the
amendments,' and that the `three-fourth' threshold is
entirely unreasonable because many democratic countries
have set a simple majority as the threshold for
constitutional referenda. But these people cannot
justify their suggestion at all. For which advanced
democratic nation would not set a threshold for the
turnout rate when designing a referendum system for
constitutional revision? Or is there any democratic
nation, which would allow a turnout of 23.4% to
constitute an effective constitutional referendum?
Even Taiwan's Referendum Law requests a turnout of 50%
when ratifying a law by the people, not to say
ratifying a constitutional provision? In fact, it is a
pointless debate now to argue whether the `three-
fourth' threshold is too high. No threshold for the
turnout rate was set before the elections. Even if
such a high threshold was set afterwards, it can hardly
cover the two basic problems that there is a serious
lack of democratic legitimacy of the latest NA
elections and there are major legal flaws of the
procedures.

"Voters are not stupid. They refused to be manipulated
by politicians. They dislike that politicians
exaggerate or misinterpret at will the results after
every election, making the supporting rates into
whatever things they want. Therefore, they have chosen
to remain indifferent. The excessively low turnout
rate is a terrible warning to politicians who are eager
to manipulate with constitutional reform issues and
play with the political reform `image engineering'.
Now the rating for this old drama, of which six
episodes have been shot, has reached the lowest point.
Most viewers have turned off their television to
protest. Is the bad drama still going to be aired?"

PAAL