President Ma Ying-jeou (馬英九) and his administration are not heeding calls for a citizens’ conference on constitutional affairs, putting constitutional reform on the political agenda. Nonetheless, the Sunflower movement has inspired Taiwanese, enabling discussion of a kind of constitutional politics that transcends politics as usual.
Influenced by US law professor Bruce Ackerman’s theory of constitutional change, observers have said that developments promise the coming of a new “constitutional moment” in Taiwan — the Sunflower movement might bring about a new Taiwanese constitutional democracy. It suggests the success or failure of this movement is contingent on whether it can garner political support strong enough to withstand and overcome suppression and counterattacks from supporters of the old regime.
The conventional wisdom of written constitutionalism leads to hopes for constitutional reform placed in amending, revising, or remaking the Constitution. However, even if the out-of-touch Constitution is firmly entrenched and yet to be changed, high-energy constitutional politics still opens the possibility of creating and sustaining a new constitutional paradigm.
This mode of change, changing the substance of the constitutional law without changing the text of the Constitution, is not the sole prerogative of the Council of Grand Justices. When seen in this light, the legislative debate over the draft act on cross-strait agreements backed by civic groups on one hand and the draft procedures and oversight of agreements made between Taiwan and the Mainland Area proposed by the Executive Yuan on the other, is of great constitutional significance, as it features a paradigmatic contestation of how the government should approach cross-strait agreements.
It is also a touchstone of what Sunflower constitutionalism stands for and how strong it is as a political force.
The Ma administration is trying to block legislation proposed by civic groups, arguing it is unconstitutional. They join China’s Taiwan Affairs Office in denouncing the draft law as an attempt to define Taiwan and China as separate states. They say the ex-ante legislative oversight of cross-strait negotiations proposed is a legislative encroachment on executive power.
The constitutional fiction of “one country, two areas” that the Ma administration embraces is an authoritarian vestige that serves to suppress Taiwan’s sovereignty. As to the separation of powers they are guarding, it is in reality the closed-door, backroom politics that allows a tiny clique of political and business elites to dominate. We cannot stop Ma and his administration making absurd pronouncements about constitutional law, but we can and must deny unjust power domination — especially when it is done in the name of the Constitution.
Taiwan’s laws on cross-strait relations suffer from a serious democracy deficit that exposes the nation to a high constitutional and political risk of having its freedoms sold down the river and its democracy hollowed out. The laws on cross-strait relations are in need of being framed within a new constitutional paradigm that entails strengthened democratic participation and deliberation.
The president’s government insists on “one country, two areas” dogma, but Taiwanese do not have to accept it. Based on outmoded theories of separation of powers, Ma wants his administration to sustain its monopoly over cross-strait negotiations, but the public can deny the executive branch that monopoly.
The final arbiters of this contest between old and new constitutional paradigms over cross-strait relations laws will be the sovereign citizens of Taiwan.
Su Yen-tu is an assistant research fellow at Academia Sinica’s Institutum Iurisprudentiae.
Translated by Julian Clegg