What is this mysterious new constitution President Chen Shui-bian (陳水扁) loves to talk about? Why does he advance it, and should Taiwanese endorse it? While most articles on the topic focus on the independence-related ramifications of a new constitution, this article is dedicated to discussing these questions in a legal, practical and political light.
First, why are we talking about a new constitution? We are talking about it because Chen is talking about it. Chen advances it because he is seeking re-election, because he is a staunch nationalist and because he genuinely believes Taiwan's Constitution is neither adequately democratic, nor efficient, nor appropriate for the citizenry over which it governs. Chen's "new constitution" rhetoric is not merely a re-election gimmick because there are actual, observable problems with the current organization of the government and there are real advantages in resolving them.
Chen has argued that Taiwan needs a new constitution in order to strengthen its democracy. Taiwan's democracy is strong and suffers few democratic weaknesses. Importantly, what it does suffer is due to redundancy in government and a consequent lack of efficiency and accountability. Fixing these weaknesses could improve the government's ability to expediently respond to the needs of the public and pass legislation accordingly.
Let us look at the weaknesses of Taiwan's democracy in order to assess whether strengthening it is worth the effort.
The government is neither purely presidential nor purely parliamentary. Rather, the president shares power with the president of the Executive Yuan, the premier. The premier's powers mainly derive from his position on the Executive Yuan Council, which, according to the Constitution, drafts "statutory or budgetary bills or bills concerning martial law, amnesty, declaration of war, conclusion of peace or treaties, and other important affairs," that is, essentially anything it wants, before presenting them to the legislature for approval.
Once a bill is drafted by the council, it is almost always passed by the Executive Yuan, thus the executive body is not a check in and of itself. The only check on the Executive Yuan or president's power lies in the Legislative Yuan's ability to amend or reject proposed legislation.
However, because the president may unilaterally appoint and dismiss the premier, these powers are, for all intents and purposes, the president's powers. Furthermore, because the president is one layer removed from the Executive Yuan, he is able to escape blame for stymied legislation or overly forceful legislation-making, and he can pin them on the premier instead.
For example, when Chen ordered the termination of the Fourth Nuclear Power Plant's construction, he responded to criticism by removing the premier. This layer of insulation from accountability permits the president to behave slightly more authoritatively than he would were he directly a part of the executive branch and were there not this cushion.
The next redundancy is that of the National Assembly and Legislative Yuan. The two are essentially the same in representative composition (the Constitution calls for the National Assembly delegates to be elected "by proportional representation based on the election of the Legislative Yuan") and the assembly's powers are so few that it might as well be disbanded.
In addition, National Assembly members are not elected by the people and therefore, in a democratic system, should not be making decisions on their behalf. This government structure is a remnant from 50 years ago when the Constitution was to govern 450 million people in China, and not just the 23 million in Taiwan. The relatively small population of this country does not demand a dual-bodied legislature.
Last, the Constitution has a bizarre set of checks and balances. The legislature may check the power of the premier by a vote of no confidence, which passes with the approval of a simple majority of the total number of lawmakers.
If such a vote passes, then the premier can request that the president dissolve the legislature.
The president may then dissolve the legislature, after consulting with the legislature's president. The check is evidently supposed to deter lawmakers from flippantly voting out the premier. However, a superior form of checks and balances is one where revenge may play less of a role. Moreover, dissolving government bodies, replacing leaders, and holding elections slow down a government and undermine its efficiency.
Therefore, Taiwan could benefit from a system that lets the legislature amend or veto legislation proposed to it by the Executive Yuan and that gives the president the power to veto legislation that is passed by the legislature.
Furthermore, the government should provide for judicial review of legislation before it is passed so that lawmakers do not waste time legislating on unlawful matters.
Finally, the government should not be permitted to come to a standstill by dissolving itself branch by branch.
Creating a new constitution or amending the old one will both require much time, effort and resources. To determine whether the benefits are worth the costs, let us determine what the costs are.
If the president's party is the majority party in the legislature, the president holds too much power. Whatever he wants is conveyed to the premier, is subsequently passed by the Executive Yuan, and then is easily passed by the legislature into law. When the president's party is not the majority party, as is the case now, the legislation-making process is bogged down in fighting and the process is inefficient.
Take, for example, the referendum law which is continually debated but never resolved. When the president's party and the legislature's majority party are different, the president tells the premier what he wants accomplished, but once the proposed legislation reaches the legislature its progress is stymied by the majority party.
Furthermore, because the premier cushions the president from direct accountability, legislative objections to executive proposals do not reach the president, so the president does not adjust his expectations, and meanwhile the premier takes the fall. After the termination of construction of the Fourth Nuclear Power Plant, the president dismissed the premier to appease a critical public.
There is also much legal discussion over whether the creation of a new constitution is legally defensible. The arguments can be summarized as follows.
Some argue that because the creation of a new constitution is not stipulated by the Constitution, theoretically it can only be brought about by revolution or war.
However, let us say that we are just proposing a drastic amending of the Constitution. Some argue that large-scale amendment is justifiable if it is what the people want because in a democracy, the people's will is sovereign.
It is also argued that the Constitution allows for amendments of any size, since it does not specify the extent of acceptable amendments, and no one can now validly create such a limitation.
There is very little substantial difference between drastic amendment of the Constitution and the creation of a new constitution. It does not matter very much what you call it, so long as the changes are beneficial.
Finally, why approve the new constitution by referendum? One reason is that in most democracies the people's will is considered sovereign.
Therefore, when approaching a matter of such importance, the public ought to decide whether they are satisfied with their new governing document.
In addition, there is a precedent for constitutional referendums elsewhere.
For example, Charles de Gaulle's government in France adopted a constitution through referendum in 1945.
One can choose to look at "new constitution" rhetoric as Chen's personal struggle for re-election or as a simple statement of pro-independence sentiment, but to view the idea so narrowly would be a mistake. Taiwanese people are faced with the possibility of enjoying substantial benefits that could come with a properly redesigned government structure.
Taiwan's democracy, though not terribly weak, could be considerably improved to respond faster and more accurately to constituents' demands and to pass legislation more efficiently. We are talking about large-scale changes, but they could bring about extensive improvements to what we ought not forget is a very young democracy.
Deborah Kaplan is an assistant to Democratic Progressive Party Legislator You Ching (
Could Asia be on the verge of a new wave of nuclear proliferation? A look back at the early history of the North Atlantic Treaty Organization (NATO), which recently celebrated its 75th anniversary, illuminates some reasons for concern in the Indo-Pacific today. US Secretary of Defense Lloyd Austin recently described NATO as “the most powerful and successful alliance in history,” but the organization’s early years were not without challenges. At its inception, the signing of the North Atlantic Treaty marked a sea change in American strategic thinking. The United States had been intent on withdrawing from Europe in the years following
My wife and I spent the week in the interior of Taiwan where Shuyuan spent her childhood. In that town there is a street that functions as an open farmer’s market. Walk along that street, as Shuyuan did yesterday, and it is next to impossible to come home empty-handed. Some mangoes that looked vaguely like others we had seen around here ended up on our table. Shuyuan told how she had bought them from a little old farmer woman from the countryside who said the mangoes were from a very old tree she had on her property. The big surprise
The issue of China’s overcapacity has drawn greater global attention recently, with US Secretary of the Treasury Janet Yellen urging Beijing to address its excess production in key industries during her visit to China last week. Meanwhile in Brussels, European Commission President Ursula von der Leyen last week said that Europe must have a tough talk with China on its perceived overcapacity and unfair trade practices. The remarks by Yellen and Von der Leyen come as China’s economy is undergoing a painful transition. Beijing is trying to steer the world’s second-largest economy out of a COVID-19 slump, the property crisis and
Former president Ma Ying-jeou’s (馬英九) trip to China provides a pertinent reminder of why Taiwanese protested so vociferously against attempts to force through the cross-strait service trade agreement in 2014 and why, since Ma’s presidential election win in 2012, they have not voted in another Chinese Nationalist Party (KMT) candidate. While the nation narrowly avoided tragedy — the treaty would have put Taiwan on the path toward the demobilization of its democracy, which Courtney Donovan Smith wrote about in the Taipei Times in “With the Sunflower movement Taiwan dodged a bullet” — Ma’s political swansong in China, which included fawning dithyrambs