EVENTS

Date:	Monday, January 22, 2007
Time:	9:00 AM -- 12:00 PM
Location:	Wohlstetter Conference Center, Twelfth Floor, AEI 1150 Seventeenth Street, N.W., Washington, D.C. 20036

January 2007

Constitutional Change in Taiwan: Provocation or Democratic Consolidation?

Since Taiwan’s President Chen Shui-bian’s 2004 pledge to pursue constitutional revision, Chinese commentators have warned that Chen will manipulate the process to achieve de jure independence from the mainland, a step it says would lead to war. Despite Beijing’s saber-rattling, constitutional reform on Taiwan has been a central part of the island’s twenty years’ evolution from authoritarianism to democracy. What are the current parameters of debate on constitutional revision in Taipei? Will political polarization in Taiwan prevent consensus on the next step in changing the constitution? What are the American interests in an issue that may open the next cross-Strait rift? At AEI on January 22, six panelists discussed these and other questions relating to the prospects for constitutional change in Taiwan.

T. J. Cheng
College of William and Mary

The constitutional issues in Taiwan are similar to those in the Philippines, Thailand, and South Korea for geographic and systematic reasons.

Constitutional difficulties in these societies are intimately related to, if not caused by, flaws in the party system. Semi-parliamentary systems need a functioning party system, but in Taiwan, the party system is problematic, fluid, and chaotic. Party discipline and organization is weak, and candidates often create the parties, rather than the reverse. Parties are extremely polarized and are often internally divided, combining to result in a policy stalemate.

Micro rules are the driving factors in the constitutions of Indonesia, Thailand, and South Korea, while macro rules drive Taiwan’s constitution. In the Philippines and Thailand, micro rules provide incentives for different factions to confront, rather than work with, the president. In both countries, the president is almost always considered a lame duck because of the presidential one-term limit. In Taiwan, however, elections are synchronized and one-term limits have been eliminated. The problems in Taiwan are caused by a strong set of checks and balances, which prevent the system from operating smoothly.

A high frequency of constitutional change in Taiwan is unavoidable for two reasons. One is  that because Taiwan gradually democratized and had no cleaning out of old rules and policies, it has become necessary to periodically update the constitution to address current problems. The other is that constitutional reform is generally a taboo subject in China, meaning that the changes in Taiwan’s constitution must occur in small increments so as to avoid provoking Beijing.

Donald Horowitz
Duke Law School

Constitution-making is an inherently flawed process, and there are several problems consistently associated with it. First, constitutions tend to be made in times of crisis by people who have not made them before and who will likely not make them again. Second, constitution-makers often fail to use the processes appropriate to the problems confronting them.

There are two main biases involved in constitution-making: the first, the model bias, uses a foreign country’s constitution as a model. The foreign country may be chosen as a model because it is viewed as the most democratic neighbor or the most influential country in the region. This bias can prevent the nascent country from addressing its own problems. The second bias, historical in character, is overly focused on avoiding the perceived problems of the past. In this case, constitution-makers are so concerned about avoiding past mistakes that they write a constitution that overcompensates and does not look to the future.

Public participation and transparency are not panaceas for the problems of constitution-making, although they offer some benefits. Constitution-making requires a tradeoff between public participation and expertise. Transparency becomes more important when the regime in power is not trusted, but overly negotiated constitutions can also be problematic. For a government to be effective there must be a strong ensemble of institutions, but this method often leads to a system in which none of the various sections of the constitution fit together.

There are three general models for effective constitution-making. The first--an open, public, and transparent model--is appropriate in unified societies. The second model, which is intended for societies divided along ethnic or religious lines and where a majoritarian process is not appropriate, seeks to reduce conflict and create a democratic system. The third model, which applies to Taiwan, is characterized by a polarized party system with many intra-party divisions in which people are attached to the existing constitution.

The goal of this model is to prevent political polarization. Completely scrapping Taiwan’s existing constitution would polarize a large group of citizens and would risk fracturing the island’s society. Indonesia, which faced a similar scenario with its 1945 constitution, carried out a slow amendment process in which all parties had to agree to any changes. That process took four years, but produced substantial changes within the existing constitutional framework.

Richard Bush
Brookings Institution

To secure the abiding U.S. interesting the peace and stability in the Taiwan Strait area, the Clinton and Bush administrations have pursued a policy of dual deterrence, warning China from using force against Taiwan and at the same time discouraging Taiwan from taking political initiatives that might provoke a Chinese use of force. This approach prevents each side of the Strait from precluding the goals of the other.

Regarding constitutional reform on Taiwan, the United States does not oppose constitutional reform per se and would welcome revisions that improve the island’s governance. The United States would, however, object to constitutional reform that had certain procedural and substantive features.

Procedurally, the United States is opposed to revisions not done according to provisions of the 1947 Republic of China (ROC) constitution. Any attempt to change the structure of the state needs to have broad national consensus and thus legitimacy, which those provisions guarantee. Substantively, the United States is opposed to any reform that changes the legal identity of Taiwan in relation to the state called China.

China’s commitment to peace is based on its belief that unification in the future is possible. If Beijing believes that constitutional change on Taiwan makes this impossible, it creates an unpredictable situation for the region, with the possibility that the People's Republic of China (PRC) might miscalculate about Taiwan’s intentions and overreact. That being the case, and since the United States has a security commitment to Taiwan, U.S. administrations would always expect Taiwan leaders to take U.S. security concerns into account as they pursue sensitive constitutional changes and to maintain close communications between Taipei and Washington.

Wen-cheng Lin
Taiwan Foundation for Democracy

The framers of the ROC’s constitution created it for mainland China in 1946 and never meant it to apply to Taiwan. As a result, many of the constitution’s articles are ill-suited for Taiwan. Social forces in 1970s and 1980s forced the government to end its thirty eight year-long imposition of martial law in 1987. The 1990s saw a period of constitutional amendments as Taiwan transitioned from a single-party system to a multi-party democracy. Recently, President Chen has suggested that Taiwan may need a new constitution.

The primary problem with the 1946 constitution is that it created a government that is too big for Taiwan. It calls for a four-layer system consisting of a central government, a provincial government, county and city governments, and township governments. Within the central government there are five branches: executive, examination, control, legislative, and the national assembly. The functions and duties of these branches often overlap and the sizes of the legislative bodies are disproportionate to Taiwan’s size.

While several important amendments have been passed since Taiwan’s transition from an authoritarian regime to a democracy, overarching future constitutional reform remains unlikely due to the complexity of the amendment process and the high threshold needed to approve any changes. China’s influence also hinders broad constitutional reform. If Taiwan’s two leading political parties can cooperate with one another and Taiwan’s democracy deepens, broad constitutional reform may become possible, but current conditions make any such reform unlikely.

John Tkacik
Heritage Foundation

While most observers agree that fatal structural flaws are embedded in Taiwan’s current constitution, it is unlikely that the country will soon adopt a new constitution. There are two main problems with the current constitution: the territorial definition of the ROC and the structural flaws that hinder the mechanics of governance.

As early as 1947, experts believed that the ROC constitution was doomed to fail. Until 1990, the ROC constitution was irrelevant in both Taiwan and China. From 1991 to 2000 the constitution worked relatively well for Taiwan. Since the recent development of a multi-party system within Taiwan, however, the ROC constitution has proven dysfunctional, resulting in a state of chronic administrative gridlock.

The main concern is not that with a new constitution Taiwan will assume a new name or formally declare its independence. Instead, the current focus of anxiety from foreigners--and some Taiwanese--is that the new constitution will formally list the territories of Taiwan. Explicitly delineating the borders of Taiwan separates it from the People’s Republic of China (PRC).

One solution to this problem is to keep the original language of article four, which does not delineate ROC territory, in the revised constitution. Some argue that any ROC reform is tantamount to self-determination, and they worry that reform may cause China to use force against Taiwan. But the ROC has revised the 1947 constitution several times in recent years, including a significant revision in 2005, without Chinese military action. Unfortunately for Taiwan, these incremental changes have resulted in a constitution that is pasted together, lacking cohesion and a systematic philosophy.

Jiunn-Rong Yeh
National Taiwan University

In the 1970s many argued that Taiwan should draft an entirely new constitution. The existing political structure, as well as internal problems, have prevented any major changes from taking place, resulting in only incremental constitutional revisions over the past two decades. The constitution has been revised seven times since 1990, and each of these revisions has represented an attempt to solve a contemporary political crisis. These reforms have created a constitution that makes little sense as a whole.

The current movement for constitutional reform can be seen as a second round of constitutional revision. But the constitutional amendment process is cumbersome, and the threshold for passing amendments is almost insurmountable. It takes a two-thirds legislative majority to pass a constitutional proposal in the Legislative Yuan, at which point it must be put to a referendum. At least 50 percent of legitimate voters must then approve the changes.

AEI intern Charlie Murray prepared this summary.