American Enterprise Institute

January 22, 2007

[Edited transcript from audio tapes]

8:30 a.m.	Registration and Breakfast
9:00	Introduction:	Therese Shaheen, AEI
9:10		Panel I: The Taiwanese Constitution: Past and Present
	Panelists:	Wen-cheng Lin, Taiwan Foundation for Democracy
		John Tkacik, the Heritage Foundation
		Jiunn-Rong Yeh, National Taiwan University
	Moderator:	Dan Blumenthal, AEI
10:30		Panel II: Constitutional Change: From Autocracy to Democracy
	Panelists:	Richard Bush, the Brookings Institution
		T.J. Cheng, William and Mary
		Donald Horowitz, Duke Law School
	Moderator:	Gary Schmitt, AEI
Noon	Adjournment

Proceedings:

[Note:  Some speakers have accent, and sometimes difficult to understand some words, hence the “indiscernible” notations.]

Therese Shaheen:  Thank you very much.  Winston Churchill said, “It’s been said that democracy is the worst form of government – except for anything else that’s been tried.”  I’m sure you’ve probably heard that before but gosh, it’s true.  Democracy is so difficult.  Look at what’s happening in the United States.  Now we have a Congress controlled by the Democrats, which do not control the executive branch, and while there may have been stalemate anyway because of the fact that these are the last two years of President Bush’s term, now there’s probably much more of a guarantee that there will be stalemate on most issues.

That goes true for any democracy, any real democracy.  Sometimes I feel that the Taiwanese people get overly frustrated that things are so difficult to get done in Taiwan and that’s because they’re in the youth stages of their democracy and don’t realize how darn hard it is and what a difficult form of government it is.  But it does allow us to be free and that’s the most important thing.

So today we’re talking about constitutional changes, of which there have been many.  We’re talking about how these constitutional changes, some of them are things that improve efficiency and some might be political statements.  We’re talking about political polarization in Taiwan, which can be a problem because political polarization in the United States here too, but we also see a lot of people in the center saying, look, we’re tired of this and we want to do something to sort of fix the problem. 

Some of these ideas have come up like, okay, let’s wait fifty years, and tell them in fifty years we’ll talk about it again, under these conditions.  We’ve seen things like that.  So really anything can happen, especially since the last elections went against expectations.  But that’s true about every single Taiwanese election for the last seven years now – they’ve gone against expectations.

With that, I’ll turn it over to the Honorable Mr. Dan Blumenthal.  Thank you very much for coming.

Dan Blumenthal:  Thank you very much, Therese.  I am honored to open up and present a very distinguished panel here to discuss Taiwan’s constitution, past and present.  We have with us today Dr. Wen-cheng Lin, who’s the president of the Taiwan Foundation for Democracy.  I knew him in his capacity, when I was in government, as a senior advisor on the Taiwan National Security Council, so it’s a personal pleasure for me to see him here today.  He is widely known in the area of democracy promotion and Taiwan’s democracy consolidation.

John Tkacik, a senior fellow at the Heritage Foundation who needs no introduction, is a prolific writer and speaker.  I’ve had the pleasure of working with him for some years now, as well as Dr. Yeh, who formerly was part of the Chen Shui-bian government as head of research and development and is now once again a professor of constitutional law and other matters of law at National Taiwan University.

I think what we’ll do is just go down the line here, starting with Dr. Lin.  About a ten to twelve-minute presentation and then open it up to discussion, questions and answers. 

Wen-cheng Lin:  Thank you very much, Dan, for your kind introduction.  Distinguished ladies and gentlemen, it is my great honor to be invited to come to D.C. to discuss Taiwan’s constitution reforms.  Actually I study security issues so I don’t know if I’m the right person to talk about constitutional reform in Taiwan or not. 

But on Taiwan’s constitutional reform, I think the Taiwanese have a very unique country.  No other country’s efforts at constitutional reform attracted so much attention – even Japan.  Although Japan’s constitutional reform attracted heavy external attention, no country’s reform equals the very great [indiscernible] military attack from mainland China.  So Taiwan’s constitutional reform actually is related to national security.  But I just [indiscernible] the program of this workshop, I try to give you a background of the evolution of Taiwan’s constitutional reform.

I think everybody knows that the constitution of the Republic of China, which is a [indiscernible] implemented in Taiwan, was adopted by the National Assembly in China on December 25, 1946 – sixty years ago – and began to be effective from December 25 of the next year.  The structure of the government, national titles, and the sovereignty and territory in the constitution were designed to cover the full China.  But after the KMT lost the civil war against the Chinese Communist Party and retreated to Taiwan in 1949, obviously the territory was gradually revised.  Now it covers only Taiwan, the Pescadores, and the offshore islands controlled by the ROC such as Kinmen and Matsu.  So you can see the big changes.

Most of the articles in the constitution, which was designed sixty years ago, no longer suit the needs of Taiwan but the constitution was not really influencing Taiwan from the beginning.  In the past six decades, you can see the constitution was not really influencing Taiwan because the ROC government imposed much laws in 1949.  So people in Taiwan were deprived of basic civil and political rights during the martial law from 1949 to 1987.  The constitution was not replaced by a new constitution and even had not been amended before 1991.

I would like to argue that Taiwan’s constitutional reform intertwines with democratic change in Taiwan.  Taiwan’s social forces in [indiscernible] in the 1970s, and again with greater momentum in the 1980s, the expanding middle class demanded political reform.  The ROC government was forced to lift the thirty-eight-year-old martial law on July 15, 1987.

Another big change is that President Lee, who succeeded Chiang Ching-kuo to become the first Taiwanese president on the island on January 13, 1988 – President Lee spread Taiwan’s democratic reforms and made six constitutional amendments.  On March 18, 2000, Mr. Chen Shui-bian won the presidential elections.  It was the first time in Taiwan’s history that the pro-Taiwan independence, democratic [indiscernible] parties became the ruling party. 

In May 2005, Taiwan amended its constitution again.  But President Chen pointed out that he would like to push for a new constitution.  I’m sure my colleague Jiunn will talk about that.  So we attracted more attention in the future.  But I would argue that to draw up a new constitution in Taiwan is a “mission impossible,” because of the power structure in Taiwan for the time being, and without the cooperation between the ruling party and the opposition party, a new constitution is unlikely.

So as a [indiscernible] the ROC constitution which was adopted in 1946 designed a government which is too big for Taiwan.  First of all, it creates a four-layer government.  The first layer is the central government.  The second layer, the provincial government.  The third layer, county and city government.  The fourth and lowest layer is the township government.  You cannot imagine that a tiny island, you need to have four layers of government. 

More ridiculously, I believe, the Taiwan provincial government overlaps with the central government in more than 90 percent of the territory and 80 percent of the population.  Number two, the central government has five branches – the executive yuan, the examination yuan, the comptroller yuan, the legislative yuan and the National Assembly.  So in the past there was a competition with the legislative yuan, either with the [indiscernible] or the comptroller yuan or the National Assembly.  Each one argues that they are the real congress in Taiwan.  So we have that kind of problems.

As I said, why there is such a competition is because the functions and duty of those parties are overlaid.  The National Assembly officially has 3,045 members and the legislative yuan 773 members.  They are too big for the island country, which has a land area of 36,179 square kilometers and 23 million people only.  In addition, those National Assemblymen and legislators held these seats indefinitely because it is impossible to hold an election to [discernible] the constituents in China.  The ROC government no longer has a legitimate [indiscernible] for China after it lost the China seat to the PRC in the United Nations in October 1971.  The constitution has become the obstacle for the government to increase its efficiency.

So there was an urgent need to reform the constitution to meet the needs of Taiwan and to reflect the political reality of the Republic of China.  But when Taiwan was ruled by the KMT under the leadership of Chiang Kai-shek and his son from 1949 to 1988, no amendment was initiated because the [indiscernible] stuck with the One China policy and used the ROC constitution as an excuse to legitimize their claims that the ROC government is the sole legitimate government [indiscernible] for China.  So they refused to amend the constitution until President Lee’s rule for twelve years, from 1988 to 2000.  Taiwan was transformed from an authoritarian country to a full-fledged democracy.

According to Freedom House, whose headquarters is in New York, Taiwan is the most democratic country in East Asia.  We are equal to Australia and New Zealand.  We are more democratic than South Korea and Japan now.  I don’t know whether you agree or not, but according to Freedom House we are the most democratic country in the world.  We are equal to the United States.  The ROC has civil freedoms, civil and political liberties [indiscernible], which is the freest country in the world.

But one of the most important steps toward democracy is to amend the constitution in order to reflect Taiwan’s political reality.  The six constitutional amendments were very important to complete Taiwan’s democratic transformation.  In 1991, ten constitutional articles were either amended or added, providing the legal basis for the country – hence, there were elections for the three central [indiscernible] parties.  All the seats in the National Assembly and the legislative yuan were open for public competition in 1991 and 1992. 

In addition, the amendment renews Taiwan’s jurisdiction to cover Taiwan, the Pescadores and the offshore islands controlled by the ROC only.  We accepted in 1991, because of the constitutional reform, we accepted the PRC’s legitimacy to a Dual China.  We defined the PRC regime as an unfriendly political entity with legitimate [indiscernible] in China.  So it paved the way for establishing and concentrating exchanges between the two sides of the Taiwan Strait.

So these amendments laid the foundation for President Lee to define the relationship between the two sides on the Taiwan Strait as state-to-state – a special state-to-state relationship.  In interviews with a German radio station in 1999, President Lee argued that after the constitutional reform in 1991 our relationship with China changed.  It is a state-to-state relationship because of the constitutional reform.

Another important constitutional amendment was in 1992 and 1994, which stipulated that the president and vice-president shall be elected by the entire populace of the free area of the Republic of China.  So this is very important.  It completed the first phase of constitutional reform in Taiwan.  Because of this important constitutional reform, we had the first direct presidential elections on March 23, 1996. 

About President Chen’s constitutional reform – although President Chen promised to give the people in Taiwan a new constitution – that is what he said – timely, relevant and valuable – but he only amended the constitution once, in 2005.  But the constitutional reform in 2005 I believe was very important because, number one, it cut the number of the legislative yuan from 225 seats to 113 seats.  The DPP now believes that was a big mistake.  Maybe my colleague, Professor Yeh, will talk about that. 

Number two, it adopted a single district to [indiscernible] the legislative electoral seats.  Another mistake by the DPP because it changed the power structure in Taiwan. 

Number three, it extends the terms for the legislators from three to four years. 

Another important change is that it phases out the National Assembly in fourteen popular referendums on future constitutional amendments.  This is a very big important change.  It makes constitutional reform in the future very unlikely because after a constitutional amendment proposal is passed by the legislative yuan, we need a referendum to approve the constitutional reform.  It is quite unlikely because the threshold is quite high.

Another constitutional change in 2005 is it empowered the Council of Grand Trustees [phonetic] to screen presidential and vice-presidential impeachment proposals. 

So as I argued, these amendments have a tremendous political impact for it encourages the emergence of a two-party system in Taiwan.  In the future you can see that the People First Party and the Taiwan Solidarity Union, they will be [indiscernible] in the future because their existence is threatened by the constitutional reform in 2005.  So these two minor parties opposed the constitutional reform in 2005 but they were overcome by the two leading parties, the DPP and the KMT.

I will cut short my presentation because I will take more time for Q&A.  I would argue that in the future constitutional reform is unlikely because the threshold is very high and the process is very complicated.  But another factor which has been continuing to affect Taiwan’s constitutional reform is China.  Beijing does not trust the democracy which protects the freedom of choice for the people and Beijing believes that if the people of Taiwan are allowed to make a free choice without worrying about the military threat from China, they would choose a permanent separation from China.  Therefore Beijing has always opposed Taiwan’s constitutional reform and China’s opposition will remain the main obstacle challenging Taiwan’s efforts to draw up a new constitution.

My concluding remarks, I would like to point out that Taiwan’s constitutional reform and democratic reforms intertwine with each other.  They will continue to affect each other in the future.  Taiwan’s constitutional reform was based on the idea of popular sovereignty.  We believe that the people of Taiwan should be the masters of their own lands and should decide their own future.  Taiwan’s constitutional reform is still incomplete, but as I said, the threshold is very high for Taiwan to draw up a new constitution.  It is almost a “mission impossible.” 

On this, the two leading political parties can cooperate with each other.  So I will argue that when Taiwan’s democracy is deepened in the future, a constitution will become likely.  But for the time being, it is a “mission impossible.”  Thank you very much for your attention.

Dan Blumenthal:  The hour was early and I didn’t have my coffee so I forgot to mention that Shaheen is now affiliated with the American Enterprise Institute.  I have to say that we’re proud to have her, so I would be remiss in not pointing that out.  John Tkacik, who is not affiliated with the American Enterprise Institute --

John Tkacik:  Except intellectually.

Dan Blumenthal:  -- although we’d be happy to have him too, is going to now speak in his usual understated manner.

John Tkacik:  I’d just add to Dr. Lin’s comments that the PFP, I understand, according to Jacob Jiang [phonetic] today, the PFP have just signed the Articles of Incorporation to join the KMT.  Alliance, I’m sorry.  So when you get down to it, the constitutional changes in 2005 are already forcing changes in Taiwan’s political environment.  Perhaps the TSU should take a note from this.

I don’t think anybody can argue with the proposition that fatal structural flaws are embedded in Taiwan’s current constitution and hence Taiwan needs an entirely new constitution.  It isn’t going to happen, but I’m just telling you, they do need it.  In my view, the obvious difficulty that needs remedying – the one that we should all focus on – is that “the constitution now enforced in Taiwan vests sovereignty in the people of China, who approved it in a nationwide vote in 1947.”  Those are the words of Chas Freeman.  He obviously believes that this means that Taiwan’s future should be decided by the people of China, because the constitution was approved in a nationwide vote in China. 

Despite the fact that Taipei’s constitutional amendments in 1992 disenfranchised the people of mainland China, denying them a democratic vote in the governance of Taiwan, I don’t think anybody can argue with a straight face that the Chinese people should enjoy rights in Taiwan that they don’t even enjoy in their own country.  But rather than get into the polemics of it, let me comment only on Taiwan’s constitution today, the constitution of the Republic of China, adopted in Nanking on December 25, 1946, and effective on December 25, 1947, as amended.

To keep it brief – and this is going to be difficult for me – I will only comment on two aspects of the constitution.  The first is the sexier of the two, which is the territorial definition of the Republic of China.  The second is the structural flaws in the actual mechanics of governance that are integral to the constitution and therefore need to be changed.  I think we all understand from Taiwan’s history that until 1990, the ROC constitution was irrelevant in Taiwan as well as China.  From 1991 to 2000, the constitution worked very well but only under a unified, single-party rule.  Since then the constitution as it now exists has placed Taiwan in a state of chronic administrative gridlock.

First, the territorial issue.  No one is too worried that the new constitution in Taiwan will actually formally declare independence, that it will change the name of the ROC to the Republic of Taiwan or even to the Chinese Republic of Taiwan, as the late vice-foreign minister H.K. Yang [phonetic] once advocated.  The current focus of anxiety among foreigners, and maybe among Taiwanese as well and certainly in Beijing, is that the constitution in Taiwan will redefine the territory of the Republic of China and thereby make a country constitutionally separate from the People’s Republic of China.  Kuomintang Chairman Ma Ying-jeou, I understand – and he was here just a year ago – said that he and his party believe in One China and there is only one China and that China is the Republic of China. 

One way to finesse this issue is simply to keep the language of Article IV of the existing constitution as is, which is “the territory of the Republic of China within its existing national boundaries shall not be altered except by resolution of the National Assembly.” “Existing national boundaries” is [in Chinese], I understand.  Of course there is no more National Assembly and the new constitution would have to recreate one or simply vest this authority in the legislative yuan.  It may also want to consider elsewhere in the Charter some sort of super-majority requirement for constitutional amendments. 

At any rate, the reason why the existing language is quite adequate to the task of making Taiwan’s national territory ambiguous is because the existing constitution doesn’t delineate ROC territory either.  This is interesting because the 1947 constitution was based on the 1936 fifty-five-clause draft constitution, Article IV of which clearly specified that the territory of the Republic of China shall consist of Jiangxu [phonetic], Jajiang [phonetic], et cetera – thirty provinces – but no Taiwan. 

Of course, in 1936 the ROC had no intention or hope of ever regaining Taiwan.  It had already ceded Taiwan to Japan in perpetuity, and in fact during a July 16, 1936, interview, Mao Zedong himself said that the Communist Party stood for the independence of Taiwan from Japan.  I have under here, Footnote 4, in that same interview Mao Zedong said that with the people’s revolution victorious in China, the Outer Mongolian Republic will automatically become part of the Chinese federation.  Just to put things in perspective here.

The territory of the Republic of China was something that hadn’t quite been nailed down yet and nobody wanted to hamper their flexibility.  The problem for the framers of the 1947 constitution was that as of 1946, Chiang Kai-shek had already recognized the independence of Outer Mongolia and in 1946 Taiwan had not yet been formally transferred to the ROC as part of the World War II peace structure. 

In June 1952, for example, the Taiwan foreign minister told the legislative yuan, in interpolations on the ROC-Japan peace treaty, “Formosa and the Pescadores were formerly Chinese territories.  However, the delicate international situation makes it that they do not belong to us.  Under present circumstances, Japan has no right to transfer Formosa and the Pescadores to us nor can we accept such a transfer from Japan even if she so wishes.”

So in this context, it is possible that the framers back in 1946 of the ROC constitution decided that enumerating the provinces that are part of ROC territory was still too problematic and limited their options.  They’ve given this a new constitution for a Republic of China which explicitly proclaims its de novo status and eschews legal precedent from any previous constitution unless specifically endorsed in the new Charter – need not change the wording of Article IV.  They can simply leave to the imagination what the traditional boundaries of the Republic of China are.  I think it’s quite reasonable to consider the ROC’s traditional boundaries as dating back maybe sixty years.

Ironically, Taiwan’s ROC constitution is based on a draft that specifically listed every province in China as part of the ROC’s territory and even included one – Mongolia – which was not governed by China, but Taiwan is nowhere to be seen.  At the same time, Mao Zedong seemed to think that Mongolia would eventually be subsumed into China and Taiwan would be independent.  The irony is compounded by the fact that neither the 1954 nor the 1975 constitutions of the People’s Republic of China never made any territorial pronouncement at all.  Only with the 1978 constitutional revisions did the PRC formally declare in the preamble that “Taiwan is China’s sacred territory.”  In the 1978 constitution it also said, “We will certainly liberate Taiwan.” 

In the 1982 constitution, which I have here – I went back yesterday and dragged this all out of my filing cabinets at home – I was surprised I still have then.  Only with the 1982 constitution Taiwan was no longer just China’s sacred territory, Taiwan is “part of the sacred territory of the People’s Republic of China.  It is the lofty duty of the entire Chinese people, including our compatriots in Taiwan, to accomplish the great task of reunifying the motherland.” 

Some scholars believe that any reform or amendment of the Republic of China constitution is tantamount to Chinese independence.  Chas Freeman, as I mentioned earlier, argued that a new constitution in Taiwan will “be a sovereign act of the people of Taiwan that by any legal standard would constitute an act of self-determination.”  A particular anxiety about the people of Taiwan committing an act of self-determination seems to be at the heart of American concerns about news that Taiwan wants to undergo some constitutional reform, because such an act is presumed to be a legitimate cause for the Chinese to use military force against Taiwan.  In fact, the latest Chinese defense white paper declares flatly, “By pursuing a radical policy for Taiwan independence, the Taiwanese authorities aim at creating a de jure Taiwan independence through constitutional reform.”  This is it.  “Constitutional reform in Taiwan will thus pose a grave threat to China’s sovereignty and territorial integrity as well as to peace and stability across the Taiwan Strait and the Asia-Pacific region as a whole.”

An act of self-determination by the people of Taiwan is a grave threat to peace and stability in the Asia-Pacific region as a whole.  There you have it.

However, the Republic of China government has reformed the 1947 constitution several times since repairing to the island of Taiwan in 1949, including a very significant revision in 2005, which Dr. Lin already mentioned.  It underwent fundamental reforms in 1991 and 1992, with the abolition of the Taiwan Provincial Government and structure just disappeared in 1999.  Now what you have left is sort of a jerry-rigged constitution just sort of pasted together with all sorts of new things, without any real cohesion or systematic philosophy.

I say this because the expert opinion on the 1947 constitution from the beginning was that it was doomed to fail.  In 1947 the U.S. embassy in Nanking provided the Department of State with an eighteen-page analysis of the new constitution in Taiwan.  The embassy’s conclusion was, “Under the new constitution, the exercise of power is fragmented and highly divided.”  It noted that “with power fragmented by constitutional fiat, the control of any of the larger political organs by a clique within one party – or within the party – can hamper or prevent effective government.  Usurpation of unconstitutional powers by dominant groups is strongly probable.” 

This analysis concludes that, “In short, there is little to suggest that the constitution will work as intended by its creators.”  Even then the U.S. embassy was basing its analysis on the idea that Taiwan was a one-party dictatorship.  It had no idea that at some point in the future Taiwan or the Republic of China constitution would be actually forced into service in a democratic government.

The embassy’s analysis was prescient, of course.  The constitution of the Republic of China adopted on December 25, 1946, was never able to function as intended.  For over forty years from that date, it was honored only in the breach, never in the observance, under the extension of martial law implemented during the period of communist rebellion.  Moreover, after it was adopted in December 1946, the Chinese proconsul of Taiwan, General Chen Yee [phonetic], announced that its provisions would not apply at all to Taiwan until 1949.  But 1949 came and went and the constitution still had no force in Taiwan.

I’ll think let Dr. Yeh go on for the rest of this, but let me make another observation here, one final observation.  It is important to remember that the Chinese Communists have never recognized the existing ROC constitution.  On January 1, 1947, Chou En-lai told the U.S. ambassador in Nanking, J. Layton Stuart [phonetic], that “in spite of the fact that the so-called National Assembly has already been held and the so-called constitution passed, their nature is still that of a Chiang Kai-shek National Assembly and a Chiang Kai-shek constitution.  We and the democrats of the whole country will determinedly not recognize them as legal and valid.”  Neither the Communist Party nor the post-1949 People’s Republic of China ever recognized the 1947 constitution as anything but an illicit attempt to legitimize Chiang Kai-shek’s rule.

The irony of this just simply runs amok.  Why should the Chinese Communists have any objection at all, should Taiwan’s people see fit to abrogate the entire thing and start all over again? 

Jiunn-Rong Yeh:  Good morning, ladies and gentlemen.  I have been teaching at National Taiwan University for eighteen years.  Continuously, I’ve been involved in the constitutional movement in Taiwan.  So I know a little bit about our constitutional development and know the problems and the anxieties, and also the internal dynamics of that.

I should say I receive a lot of blessing from abroad when our constitution was revised in 1997.  One of my friends from Melbourne writing to me said – gee, you Taiwanese are really great! You know how to move forward!  We tried to remove our monarchy and we’re not getting anywhere.  So occasionally I receive blessings like that.  But in most [indiscernible] from abroad, I receive concern.  Is your constitutional motion going to make China very unhappy?  This is the basic question.

We are in a process of coming up with what we call a new constitution.  Let me tell you, it’s not the first call.  In the early beginning of modernization, there was the first call for a new constitution.  I actually returned to National Taiwan University and began my teaching career on the completion of my doctorate of study at Yale.  I noticed there was lots of motion to come up with a new constitution then.  I myself even participated in one [indiscernible] team, coming up with a draft of a completely new constitution for Taiwan at that time.  But because of the political structure and because of internal problems, we didn’t get anywhere – resulting in a piecemeal, incremental revision since after.

Now everybody knows that we have revised our constitution seven times: 1991, 1992, 1994, 1997, 1999, 2000, 2005.  Each one represented a moment to solve a pressing political crisis.  We began with the problem of our aging representatives and we tried to have national elections, so we need to set a stage for that.  This happened in 1991 and 1992.  In 1994 we said that our presidential election is going to be direct election, but it wasn’t until 1997 they were able to downsize our provincial governments.  Then 1999 was a big joke because the National Assembly, which has the monopolistic power to revise the constitution, tried to extend their own term, resulting in a constitutional interpretation declaring that constitutional amendments are unconstitutional.  So our constitutional court functioned in that way.

Then in 2000 we abolished – or not abolished, but turned our National Assembly into a mission-oriented assembly.  In 2005 the mission-oriented National Assembly [indiscernible] again.  To tell you the truth, I was the last term of the general secretary of the National Assembly, because I was nominated and got approved by the public as a member of the National Assembly and got elected as secretary general.  I myself actually signed the final document sending the National Assembly to hell. 

So reflecting on this, we are now in a second call for a new constitution.  We are encountering lots of problems domestically and internationally.  Let me mention one piece of memory.

In 1985 I was at Yale.  At that time, I think most of our friends in the United States remember, the U.S. was celebrating the bicentennial of the Constitution.  That was the moment of thinking about drafting a new constitution and this happened in the university.  Some people believed that we should come up with a new constitution to address the new needs.  But because of Article V it’s so impossible, so cumbersome to come up with a comprehensive reform.  In order to revise the U.S. Constitution, you need to revise Article V first.  You need to go through the Article V process. 

Let me tell you, we are in the same situation.  We have a constitution, of course.  We recently added to our constitution – it’s a product of the 2005 constitutional reform – that our threshold for constitutional reform is so insurmountable – we have two layers of process.  Number one, it takes two-thirds of legislative majority to pass the constitutional proposal in the Congress.  Can you imagine how tough it is going to be even now?  The legislature has failed to approve this year’s budget.  It’s so divided, can you imagine how tough it’s going to be? 

Then we have new procedural requirements as a result of abolishing the National Assembly.  We established what we call the popular referendum process.  It would return the power from the National Assembly to the people, so people have the final say.  It is subject to a very rigid requirement that, one, 50 percent of the legitimate voters should show up and cast “yes” in the popular referendum.  That means the turnout needs to be more than 70, and more than 70 percent of the people should say yes.  Can you imagine?  The turnout in a democracy normally ranges from 30 to 65.  So I would say for coming up with what we call a new constitution through the existing process, it’s going to be very difficult.

I actually have been wondering why China worries so much.  Anything coming out from this process won’t be too bad for China, won’t be too bad in their sense, because it’s so difficult.  It takes super-consensus to come up with that.

But even that, Taiwan has been trying to make progress because we have lots of embedded institutional problems, as my friend just mentioned.  Having been in the government for four years, I really think our government structure as regulated in our constitution has been very bad.  It would take me two hours to explain to you how bad it is.  But our system is a system based on a constitutional structure drafted for big China back sixty years ago.  At that time China was so big, the illiteracy rate was so high, transportation was impossible – not to mention the information age right now.  Whereas Taiwan right now is for democracy and it’s a small island.  So the big government structure as drafted by the current constitution has been very cumbersome.  You have five powers.  We used to have four layers of elections for tiny Taiwan.  We have elections every year, literally every year.  So this year we’re going to have congressional elections and next year a presidential election and then...  I’m sorry, I’m too excited about elections.

Also, our constitutional regulations has been very notorious.  If some of you have a chance to read into our constitution, you find a chapter called “National Policy.”  If you look into the economic policy, social policy, cultural policy, you find out this is a 19th century envisage.  The vision of that is so outdated, let me mention some of that for you, for amusement.  In the constitution it says that the government shall minimize private capital and should maximize national capital, and most industry should be nationalized in order to promote the public interest.  Whereas most of the country is doing privatization in order to increase global competitiveness.  But the constitution says something like that, resulting in a chaotic interpretation in the constitutional court.  If I were a constitutional court justice, I must have a headache about that.  You have a constitution saying something like that and I need to address many issues relating to land, property, investment – lots of issues like that, not to mention democratic transition.  So it’s a very bad constitution right now.

We have lots of legitimate reasons to say the Taiwan people have a [indiscernible] chance to come up with a good constitution for us, for future generations.  The current constitution is a result of incrementalism – it’s been just like a vegetable soup.  You put everything together and it’s not connected.  Disjointed incrementalism.  In Taiwan everything happens so fast.  So this constitutional reform was for this reason, and that constitutional reform all together it becomes a mess.  I actually calculated among 174 constitutional provisions, at least one-third of them were either frozen or changed by additional articles.  So any constitutional law students, they need to check what is the real law in the constitution, check back and forth, back and forth.  So the constitutional text actually has been like something very different from what it was before.  The reality and idea has to match together, but it has been very bad.

Let me begin by addressing four questions that most people would ask me.  Number one: is there a level of constitutionalism in Taiwan?  Does it tax for your people to care about constitutional reform in Taiwan or is the constitution just political propaganda?

Number two issue: why do you need constitutional reform?

Number three: what is the timeframe and what is the process for constitutional reform? 

Last one, what would be the probable outcome for the [indiscernible] constitution.

Let me mention five critical facts about that.  Number one, yes, there is a level of constitutionalism in Taiwan.  It has been a constitutional democracy.  It is not only a democracy, it is a constitutional democracy.  Most of the political reform has gone in tandem with constitutional revisions.  Our constitutional court actually has rendered 620 constitutional interpretations.  Some of that has declared the unconstitutionality of national policies or administrative actions or even legislations.  The constitutional court has functioned as a guardian of our civil liberties and also as sometimes, maybe not too good, as an arbitrator or referee of political tension.  So there is a level of constitutionalism.

Number two, there are pressing needs for constitutional reforms, as I mentioned earlier, so I’m not going to elaborate that again.  The process, as I said, is a cumbersome process.  I would even argue that the timing is very rigid because it takes a super-majority, it takes popular referendum to do the job.  So that referendum has got to be joined with national legislation, either congressional legislation or presidential election.  So any constitutional revision is going to happen every four years.  So 2008 or the end of this year is the time.  If you miss the time now, this year, then you have to wait another four years.  That is, say, 2011.  Then four years, then four years.  So constitutional revision is not going to be everyday business.  It’s not going to be any time that you think we need it, then you press it into the political agenda.  No, it’s not.

Elsewhere I have argued about this for quite a while.  It’s a constitutional moment really.  If you miss the constitutional moment this year, then you have to wait for another four years.

The last fact is about the outcome.  I don’t think there will be what we call a new constitution coming out through the existing process.  I think it’s going to take reform of constitutional revision, depending on how many articles or to what extent you are going to revise the existing constitution.  The consensus right now is we should revise our original text rather than putting additional articles to it.  We should revise our text altogether.  But there is also a rather tentative consensus that we should avoid those controversial issues like sovereignty, national flag, things like that, in order to keep the constitutional reform moving. 

So lots of issues, including cabinet system versus parliamentary system, the human right mechanism, local autonomy and issues like that, will be the primary issue.  But of course lots of noise, lots of problems, because in the past the process of constitutional reform has been very much in these settlements – President Lee talked to others and settled a deal.  But now it’s people-centric.  It’s public deliberation, because it has to go through popular referendum and people have the final say.  So civil society plays a major role.  Don’t just read President Chen’s lips.  President Chen cannot control everything, especially in the matter of constitutional reform.  I even personally advised President Chen: don’t talk too much.  It’s not your game, it’s civil society’s game.  It’s the legislature and also the general public.

So it’s a process of public deliberation.  So even there was what we call 21st century constitutional reform coalition, joined by thirty-five NGOs – they have come up with their version and Congress is going to deliberate about that.  So it’s a different story now.

Let me conclude with my view that what is going on in Taiwan is a moment for developing constitutionalism.  If there is an outcome – and I hope the outcome will be a substantial revision of our government structure and mechanisms of human rights – if there are [indiscernible], I think better remove that so that our just cause can move forward and make everybody good, so there is going to be a good government structure for Taiwan and for regional development.  This is my concluding point and I would welcome any comments and questions.  Thank you.

Dan Blumenthal:  Thank you very much.  We have some time for questions.  Let me just set the ground rules for questions.  Please state your name and affiliation and please ask one question and avoid making comments.

Let me open up with my own question, which is the following.  Dr. Yeh, there are certain provisions in the constitution that quite obviously Taiwan is ignoring – the 19th century economic rules and so forth.  So people back in the United States would say, well, even more proof you don’t need a revision.  You’re just ignoring provisions that don’t apply anymore.  You hear a lot of arguments, maybe Chas Freeman took it a little bit further than most would like to, that there’s no need because Beijing will start a war over constitutional reform.  A lot of people don’t buy that argument and make the case that in fact America has an interest in Taiwan’s constitutional revision.  I wonder if all of you can just briefly comment on the types of revision, the types of amendment that would actually benefit American policy – whether it’s breaking some of the gridlock in Taiwan on important budgetary issues or other types of measures that American policymakers would have an interest in seeing Taiwan implement.

John Tkacik:  The first thing that comes to mind for me is it’s got to be in the U.S. interest to have Taiwan function with a constitution that actually enables the government to work.  The key structural problem is the fact that the president doesn’t have the kind of power that we think a president has and the legislative yuan doesn’t have the kind of power that we think a parliament should have.  They are constantly at each other’s throats.  One might say it’s an amalgam of a presidential system and a parliamentary system that basically cancel each other out.  Maybe you should either fish or cut bait – either have a presidential system or a parliamentary system.

My own preference would be for a parliamentary system but I can see the advantages of a presidential system.  But at any rate, a new constitution for Taiwan or a constitutional revision for Taiwan should figure out some way of resolving this basic structural problem.

Jiunn-Rong Yeh:  I think America has a great interest in seeing Taiwan operate in the constitutional way, a kind of mature constitutional democracy.  Number two, the U.S. has a great interest in seeing Taiwan is part of the world and the regulation of economy is transparent and the government is trustworthy, it’s a good government.  Efficient.  If those are good values – and then also human rights, that’s valued by the Americans – then I think our constitutional reform are headed toward that direction.  Make government more efficient, more internationally competitive.

The current government structure is very bad.  To make a very simple analogy, if you have three members in your family, then you have three bilateral relationships.  So if you are the regulator of this family, that means you are the constitution, then you should regulate three figures and three relationships.  But once you have five members in your family, you have not five but ten bilateral relationships.  The constitution needs to regulate ten relationships rather than three.  So the mere fact that you add two powers into the constitution at the first level with seven relationships, so our constitutional court has been very busy in regulating this relationship, that relationship, that relationship.  I think that is very bad, especially when you are in the government and you need to make a reform – democratization and globalization.  You need to change, for example, the civil service system.  You need to make it more flexible.  But you need to consult not only executive yuan but the examination yuan is going to play a part.  The examination yuan is composed of like thirty members and they are to have a collegial decision.  They abide by Dr. Sun Yat-sen’s rules.  So you have a very progressive executive and you have an examination yuan like that.  So you couldn’t get anywhere.

So in terms of reform, in terms of making it more transparent, more flexible, more in tune with globalization, I think our government structure is very bad.  So lots of [indiscernible] people, they do support our government reform in many ways.  I think they have heartfelt feelings about this.

Wen-cheng Lin:  I think I try to understand American government’s positions with regard to Taiwan’s constitutional reform because we understand that the United States worries that Taiwan’s constitutional reform might create trouble in relations with mainland China.  But Dr. Yeh and I mentioned that the kind of constitutional reform or to have a new constitution which might change our status as a sovereign state is for the time being “mission impossible.”  Although personally I believe it would be a good idea to have such a new constitution, the power structure in Taiwan makes that kind of change unlikely in the near future.

So I would suggest the United States take into consideration any constitutional reform in Taiwan which might increase the efficiency of the government in Taiwan – there are many issues to take into consideration.  So in the legislative yuan, the United States should support the constitutional reform.  We have a legislative yuan, the so-called Congress in Taiwan, [indiscernible] doing its job for quite a long time.  In Congress, according to studies, it cost Taiwan I don’t know how much – some people say several hundred billion dollars every year because it fails to make resolutions on public policy issues.

So I would say if in the future all [indiscernible], as Dr. Yeh mentioned, whether Taiwan should apply a parliamentary system or a presidential system – a parliamentary system I think would be more supported in Taiwan because it can guarantee the support from the parliament, the legislative yuan, for public policy.  So in the future, as I said, for us to create trouble in the Taiwan Strait is unlikely because of the power structure.  But we are frustrated by a [indiscernible] yuan.  That’s why in 2003 the referendum law can be passed, because the people were so frustrated by the [indiscernible] legislative yuan.  That’s why in the future, if that kind of mood and thinking in the people continues to increase, of course referendums for constitutional reform may be likely.

Question:  Richard Bush with the Brookings Institution.  It was expected last fall that the DPP would present a draft for constitutional reform, a draft of the new constitution.  But it didn’t happen.  I wonder if Dr. Yeh and Dr. Lin could tell us what is happening on that front.  Will there be a draft constitution from the party?  What is it likely to look like? 

Jiunn-Rong Yeh:  I was not actually involved in the drafting process but that is something I know.  Many of my friends are working on that.  So I do know DPP – DPP is a very kind of progressive political party.  They believe in constitutionalism and hope that constitutional reform in Taiwan will carry out in the existing political – even in this hardship.  But right now their program is – they openly say they hope for a parliamentary system or a presidential system.  If DPP come up with parliamentary system, then that means DPP is not going to take the coming presidential election very seriously because they are for a parliamentary system.  Why are they going to deal with those presidential candidate hopefuls?  So this is the number one issue.

Number two, there is a chemistry in the KMT also because Chairman Ma is almost certainly going to run for president.  There are other factions in the KMT, they may like to have a cabinet parliamentary system.  So once you come up with a clear position saying that we would like to have a parliamentary system or presidential system, that means you are going to align with any faction in the KMT.  So this is a delicate issue.

So I think that’s the primary reason for the [indiscernible].  Otherwise I think other provisions are almost settled, as I know.  So this is my understanding about that.

Recently there have been Young Turks in the DPP, they’ve come up with a coalition they call Generation Forum.  They come out and say they don’t like what’s going on in our party and we need to push forward constitutional reform.  They clearly indicate they think the parliamentary system is good for the country and they hope they can get bipartisan support for that.  So you have this development and also this young generation who is in DPP.

Wen-cheng Lin:  President Chen mentioned that in 2008, when his term expires, he would like to provide our people with a new constitution.  But we believe he’s going to miss the deadline.  We should mention the ideas to reform our constitution, I think it is because some legislators of the DPP who are very frustrated [indiscernible] 113 seats is just too little for names.  I think now we have 225 seats, all of them win elections.  But if all of them win the elections in 2007, this year, half is going to [indiscernible].  So they fear the – they are very anxious.  They believe the number of seats should be increased.  But if they want to increase the seats, they need constitutional reforms.  So they propose for another constitutional reform immediately in order to increase the number of seats in the legislative yuan.  But Ma opposes that kind of deal to amend the constitution because as I said, to reduce the number of seats is a mistake made by the DPP.  Ma is not going to have the DPP make that mistake again.

So my understanding is that the original idea to amend the constitution in the past year is to increase the number of the legislative yuan.

John Tkacik:  I’m interested to know why the ratification process is tolerated as a straitjacket on the constitutional process.  The ratification process is extremely arduous.  As you said, Jiunn-Rong, if you require a majority of eligible voters to vote yes, that means if you have a 60 percent turnout and 80 percent of the voters vote yes, the amendment fails.  Why accept this?  Why not, as the first step toward constitutional renovation, so that it doesn’t constrain the process that’s usable to the one that you mentioned, why not make the “amending the amendment” process, the ratification process, priority number one?

Jiunn-Rong Yeh:  In the political negotiation among political parties for the 2005 constitutional revision, there were two concerns.  Number one is congressional reform – single-district, two-ballot system.  Everybody considered that it’s better than the current system so there is no problem about that.

The second one is to abolish the National Assembly and turn it into a popular referendum.  DPP has been very pro-referendum; of course KMT has been very skeptical about referendum.  But DPP know that their congressional reform, they are going to be the beneficiaries.  So there is a kind of deal resulting in acceptance of referendum but they tried to increase the threshold, to make the referendum more and more difficult.

So the acceptance of the referendum system was a sacrifice of the function of that referendum.  That’s what was going on then.  Right now, I observe that there has been also consensus that this system is bad, because this is very rigid.  It almost kills any constitutional proposal.  But again, anybody mentions that we are going to revise that, the other party will say, well, since you want that, then we have other [indiscernible].  So this is kind of – nobody wants to mention it first.  So yes, it’s going to be part of the constitutional reform, if there is a constitutional reform.  But this issue should be addressed anyway.

Question:  Mike Fontay, I work as a consultant with the DPP.  I would just note, Dr. Lin, it seems to me that there are many KMT legislators who also would like to see the number expanded, not just DPP legislators.  But I’d like to ask Dr. Yeh – in my conversations with members of the administration here, they are nervous about President Chen’s intentions on a number of fronts.  I’d like to ask you to help me kind of put a stake through the heart of one of their concerns which is there is some thought that maybe President Chen would use a defensive referendum idea to get people to vote on whether they would like a new constitution, without any form to it.  I think that’s highly unlikely and I’d like your thoughts on that.

Jiunn-Rong Yeh:  Yes, I agree with you it’s highly unlikely.  I really cannot read into President Chen’s mind whether he actually had that in mind.  But my guess is that it’s very unlikely that anyone like him would press some sort of confidence in this move, because it’s very unlikely given the current political situation and also the hope for a real constitutional reform, as he praised in the past.  I witnessed on many occasions his sincere hope for the improvement of our government structure.  He has been re-elected president, serving the government for so many years.  He actually experienced problems with the operation of the government.  He has to deal with the executive yuan, with the premier – of course they belong to the same party but please do not say that there is no problem.  They always have to negotiate matters.  As an elected president – and he himself is not handling matters by himself.  He has to appoint a premier and the premier deals directly with the general public and the Congress.  He has to take all the political responsibility in the next election.

So that kind of system actually is odd, even to me.  So I would simply say he actually on many occasions addressed the kind of hope that our government structure would be improved – either a pure presidential system or a pure parliamentary system.  So there is a growing consensus that our current semi-presidential system is not working.

Question:  Garrett [indiscernible] of the Formosa Association for Public Affairs.  As John Tkacik has outlined very well this morning, China never accepted the present constitution but at the same time it opposes Taiwan to get rid of this constitution.  So this is a rather hilarious situation in a sense.  But the U.S. concerns of course primarily focus on the sensitive subjects such as territorial definition and the name.  But those are precisely the ones which are most confusing and outdated.  I think one example is when President Chen went to Nicaragua just a couple weeks ago, he was introduced as the President of China-Taiwan.  So that is not very clear.  But how can we really convince the U.S. government that it would be in the long-term interest of the U.S. to move forward, precisely also on those types of aspects of the constitution?

Jiunn-Rong Yeh:  I’m a scholar now.  I think we are not trying to get rid of the current constitution.  When you say you are going to get rid of the current one – no, we are going to follow the process regulated by the existing constitution.  The constitution says if you are going to have a constitutional revision, you need to follow this process.  Right now we are doing something like that.  Also, it’s not going to be a completely new constitution and discard this one.  We are going to revise that.  But not minor reform – comprehensive reform, for the first time.  We think it’s time for us to look into the constitution and make it right rather than piecemeal change again and again that will take us to a world of uncertainties actually.

So I do think that the U.S. has a strong interest to be possibly thinking about this move.  Don’t just be locked in the kind of anxiety, thinking that this is going to make China very unhappy.  Over the last twenty years, if there is any constitutional revision, I don’t see China happy at any moment.  But if you are locked into that kind of mentality, then maybe you are losing a moment that Taiwan is actually trying to improve itself, trying to make itself a better government, a better democracy.  That is going to be very critical to the region.  Let’s think otherwise – if Taiwan failed to do this constitutional reform, what will be the consequence?  I think Taiwan will go down.  This is my guess.  Taiwan will be marginalized and our government structure will make Taiwan – so I do think there is a strong interest for the U.S. to divide the issue very clearly and make the position clear to everybody that we support this kind of constitutional reform.  Rather than – well, because you may turn into that, so this is a bad idea – I don’t think this is the position of a well-established democracy, believing in constitutional democracy and human rights.

So if we think in that way, chances are there will be some hopeful or positive result.  Of course it will never be easy.  Taiwan has been navigating in troubled water for so many years and we know it’s not an easy job.  But we still remain hopeful and try to work as hard as possible.

Wen-cheng Lin:  Let me add a few words.  This is a very difficult question but I think in the United States you should ask one question: does it serve U.S. interests or not if Taiwan in the future becomes a part of China?  I think everybody knows that we have a divided national identity in Taiwan and the divisions on the issues of national identity affect everything in Taiwan, including stability in Taiwan, the politics, economic debate in Taiwan.

So why we have a divided national identity?  Of course there is a historical background.  We can trace it back to sixty years ago, but we don’t have time to talk about that.  But why we have that kind of division of national identity?  Because the constitution cannot clearly define what we are, what Taiwan is, whether Taiwan is a sovereign state or not, what kind of relationship we have with China.  So because we have that kind of constitution which cannot clearly identify ourselves, define our status, so it affects our education system, it affects our economic system, it affects our policy toward mainland China.  Now we have $200 billion investment in mainland China and our trade with mainland China is increasing every year.  China would like to absorb Taiwan into a part of its economy. 

So in the future if we cannot clearly state what we are, then [indiscernible] gradually we will become a part of China.  So the United States should ask whether it serves U.S. interests or not.

Dan Blumenthal:  I want to comment on that.  Obviously for those who are in Taiwan battling in the trenches every day on issues of constitutional revision, it seems very divided.  I think from our American perspective, it’s quite clear when you look at the polls that everybody in Taiwan agrees that they don’t want to be part of China – or at least vast majorities of people agree they don’t want to be part of China.  So they disagree about how exactly that should be maintained.  So I think this issue of divided identity can be, at least for American ears, can be overstated.

Therese Shaheen:  Therese Shaheen.  First of all, stop beating up on Chas Freeman.

John Tkacik:  I didn’t beat up on him!

Therese Shaheen:  Second thing, I don’t know if you’ve ever seen the movie [indiscernible], but it’s very difficult for the Taiwanese people to see themselves through other people’s eyes.  As Dr. Lin said, you are the strongest democracy in Asia, or at least equivalent to Australia.  So the constitution, however mangled and bad it is, you still have become the strongest Asian democracy.  So don’t be too hard on yourselves.

Let me get to the question.  The question is [inaudible: off-mike].

John Tkacik:  I’ll start it out.  This has nothing to do with Taiwan, this has to do with Mongolia.

Therese Shaheen:  The Taiwanese [indiscernible]?

John Tkacik:  Well, you get the idea.  When I was in Mongolia last year, I guess 2005, it was amazing to me how vibrant and dynamic the Mongolian democratic system was.  Every Mongolian politician I talked to – and I talked to dozens – said that the difference between Mongolia and the other Central Asian states was that Mongolia had adopted a parliamentary system that really nurtured a two-party structure, whereas all of the other Central Asian states adopted presidential systems which quickly deteriorated into authoritarian dictatorships.  That held out as the model, I tend to look at Taiwan and say, if I were choosing on all things being equal, I would go for a parliamentary system.

Jiunn-Rong Yeh:  I don’t believe any institution is good for any given society, in terms of parliamentary system versus presidential system.  I think either pure system is going to be good for Taiwan.  You have pros and cons for each one.  But the current system, which either you call it semi-presidential or any kind of name – we have many names for that – actually is the worst system.  If we can move from the current system to a pure presidential system or pure cabinet system, I think you take the pros and cons but this is going to be better than the current one.  This is my position.

Wen-cheng Lin:  To be sure, we Taiwanese always welcome strong leaders.  In that sense, a presidential system is right or suitable for our society.  But because of [indiscernible] the structures, it is quite unlikely for DPP to win the majority in the legislative yuan.  So [indiscernible] President Chen, he is quite weak because his party is a minority in the Congress.  But in the future if the KMT comes back again, if the KMT is vital, it will enjoy majority support in the Congress, so that means in the future the same party will control the presidential office and the Congress, then we are going to have a strong leader again.  But in that [indiscernible] I would support a parliamentary system.

Dan Blumenthal:  Thank you all very much for great comments and answers to questions.  We’re going to reconvene the next panel in about five minutes.

Gary Schmitt:  Good morning.  My name is Gary Schmitt, I’m a resident scholar here at the American Enterprise Institute.  I run something called the Program on Advanced Strategic Studies.  First of all, I’d like to thank you all for braving the weather and second of all braving the immense cold that seems to be in this room.  I think we kept a window open overnight.  Usually it’s too hot in here but it’s a little bit chilly today.

Our second panel is “Constitutional Change: From Autocracy to Democracy.”  I’m really quite pleased to be able to moderate this panel and particularly do so with such distinguished panelists.  I will give a quick introduction and then we’ll turn right to their presentations.

First is Professor Cheng, who is the co-chair of the East Asian States Program at the College of William and Mary.  Many of you know he’s published widely articles and numerous chapters in books.  He’s currently the editor of the “Taiwan Journal of Democracy” and he’s a chaired professor at William and Mary.

Next will be Professor Donald Horowitz, who is the James Duke Professor of Law and Political Science at Duke University Law School.  Widely published, again, with several books on the courts, social policy, ethnic conflict.  Back when I was a young professor and I had hair, I remember reading Professor Horowitz’s extremely important book on the courts and social policy which was published back in the late 1970s with the Brookings Institution.  I’ve always followed his career and his writings and it’s great that he’s here today.

Then finally, Dr. Richard Bush, who is a senior fellow at Brookings and runs their Northeast Asian Policy Studies Center and has the Michael Armacost Chair.  Many of you know he was the director of the American Institute in Taiwan, and his most recent book is “Untying the Knot: Making Peace in the Taiwan Strait.”  Dr. Bush is the epitome of the diplomat-scholar and we welcome him here to AEI.

So with that, T.J., if you could go ahead and start.

T.J. Cheng:  Many writings about the Taiwan constitutional change use the other [indiscernible] presidential systems as sort of a reference point, such as France, Finland, Russia and so on.  One popular line of reasoning why Taiwan’s constitution has not functioned like the French one, which is basically a sort of dual-track system, depending on whether the president’s party has control of the majority in parliament or not, and why Taiwan’s constitution seems to be functioning like the Russian one, where the president can have his or her way even without parliamentary control.  I’m going to divert your attention away from that sort of conceptual category to the region in Asia, which is an assignment that AEI gave me.  It might be interesting to put Taiwan in a sort of region, sort of a basis for comparative perspective.  If you like, sort of interfacing Taiwan’s constitution and politics with that in the three other democracies in the neighborhood – South Korea, Thailand and the Philippines. 

These four cases are quite similar if you look at them from afar.  First, the democracies are either two decades old or older.  Second, in each one of these four cases, four or five elections have been held.  Thirdly, in these four cases they are talking about constitutional changes either on the national agenda or it’s being seriously debated.  So it seems to me that the geographic proximity and also the highly synchronized political dynamics probably mean that actors in Taiwan or the other three countries are sort of attentive to what’s going on in the other three different societies.

Of course, whether they are learning from others or not, I don’t know.  I’m saying the neighborhood effects may or may not exist here.  What I want to do here is put Taiwan in comparative perspective so as to see how common or how unique the Taiwan case really is.  I’m excluding of course other democracies that I don’t know, but luckily they are even younger than these four, such as Indonesia, the Timor-Leste and so on – less than one decade old and they are facing different problem sets.  So I’m excluding them from my discussion.

Essentially, I’m going to argue three points.  The first one, which is sort of the really big point of my presentation – constitutional problems in all these four cases are intimately related if not caused by a flaw in the party system.  That’s point number one.

Point number two, the principal defects of the constitution in the Philippines, South Korea and Thailand lie in micro-rules, small rules, such as the split tickets between president and vice-president, such as non-concurrent elections, such as one-term limits.  Whereas the principal defects, principles of imperfection in Taiwan’s constitution lies in big rules, macro-rules rather than micro-rules – the most intractable one, which is sort of a very massive check and balance mechanism there.

The third point I want to make is that the high frequency of constitutional revision in Taiwan probably is unavoidable.  It is also controversial.  However, I would argue the external concerns, say from the United States, may be understandable while external constraints imposed on Taiwan’s constitutional process probably is not good.  It’s probably going to do more harm than good to Taiwan’s constitutional development or the development of Taiwan’s constitutionalism.

So let me briefly start developing the first point and mention the other two points briefly.

First, the big point.  If you look at these four cases, of the four cases, only Thailand has adopted the parliamentary system.  The Philippines are pure and simple sort of presidential system, while Korea has a presidential system with two distinctive features or parliamentary traits, if you like.  It has a premier appointed by the president with the consent of the national assembly, and the premier needs to go to the parliament, to the assemblies, [indiscernible] interpolations and can be indeed removed by a vote of no confidence by the assembly.

Taiwan has a semi-presidential system where the president appoints the premier without legislative consent, but this premier is the head – according to the constitution – of the executive branch and he or she can be removed by a vote of no confidence in the legislative branch, to which the president can respond by dissolving the parliament for elections.

Irrespective of their differences in the constitutional forms of government, these four democracies do not typically yield a majority party in the legislatures and the president’s party typically does not control the legislature in any of these four countries.  There’s some exceptions, yes.  For example, the ruling party’s victory in Korea in 2005, Mrs. Aquino’s alliance victory in the Philippines in 1987, and also the Thai Chartthai party’s landslide victory in 2000.  But these are exceptions rather than rules.

Pre-2000, Taiwan’s KMT majority was more apparent than real though.  It kept its grips in the legislature but was actually reduced to a very razor-thin one in the 1996, 1995 election.  Prior to that, KMT was so factionalized that it functioned very much like two parties there.

You have therefore, if elections don’t produce a legislative majority for the president – if the president doesn’t control the legislative agenda – you need a very functioning party system to alleviate the problems of the divided government that these countries understand all too well.  Divided government is under [indiscernible] from the government.  Also to form, you need a well-functioning party system to form [indiscernible] coalitions of government under a parliamentary system. 

However, this is exactly what is missing in the four democracies.  The party system in the newly democratized Asia, these four countries, either is generally weak, problematic, pathetic – several people have coined the phrase to characterize party systems in the Philippines, Thailand and South Korea as fluid and chaotic, inchoate, shallow, fragmented, and so on.  In all these systems, parties switch over very often.  Party discipline is very loose.  Party organization is underdeveloped.  Party formation [indiscernible].  Candidates create parties rather than parties creating candidates.  The political parties are simply a tool of political ambitions rather than associations where the social preferences can be arrogated and promoted.

Taiwan’s parties appear to be more institutionalized than the other three.  But the two party groups are so polarized and internally highly factionalized that they are almost sort of like a multiple-party system there.

Under the presidential or semi-presidential system, the case of South Korea, the Philippines and Taiwan, a weak party system makes the divided government problems very acute, resulting in democratic governance – a sort of crisis as either nothing will get done or if something gets done it will stand in a very problematic way, sort of ethically [indiscernible] manners.

In mature democracies such as this country, the United States, divided government is said to be conducive to political gridlock, to policy stalemate.  However I would argue that stable party systems, a flexible, sort of pragmatic two-party system, has been able to ameliorate these divided government-induced problems.  If I may cite Gary Clark and Matthew McCubban [phonetic] – two political scientists based in San Diego – they argue that divided government in the United States actually simply means that the two parties negotiate even harder and more frequently than they do under a unified government.  Indeed, in their study they showed that legislation passed by the Congress under a divided government is not less than that passed under a unified government.

What I’m saying is that if you don’t have a good party system, you have indeed acute problems in divided governments that will be very intractable.  Therefore to bypass, to overcome that kind of problems, to get things done and done properly, you have to probably [indiscernible] – you need to go extra miles to get things done, which is the case of South Korea and the Philippines.  In the Philippines, you bribe.  In South Korea, you persecute.  You sort of tame and try to cower the opposition to come to terms.  In the Philippines, you bribe, it’s patronage.  In Taiwan, neither.  Therefore for something like five or six years in the past, you are left with political gridlock and policy stalemate.  Therefore that’s where we are at.

If you step back and say, if lacking a functioning party system you cannot afford to have a divided [indiscernible] presidential system.  How about changing your form of government to a parliamentary system?  We have a case to show whether that’s going to do any good or not.  If you look at the case we have here on the parliamentary side, which is the Thailand case, the experience of Thailand shows that if a party system is problematic, democratic governance under a parliamentary system is equally deplorable as under a presidential system.  Thailand elections did not yield any sort of majority parties in the pre-Thaksin era.  This means that coalition-making within the parliament was a recurring game.  It reminds ourselves that the Thai party system is [indiscernible] as in the Philippines.  No coalition was enduring and no one could indeed make a credible commitment to one another for a certain period of time.  If you go back to 1997, during the Asian financial crisis, every time the prime minister from Thailand negotiates a pact with the IMF and the World Bank, he needs to put together a new coalition to support it. 

It was because of these kind of policies of unstable political coalitions that Thailand came out with a new constitution in 1997, to correct that.  But they overcorrected.  They instead produced a dominant party system under Thaksin.  In other words, under the new constitution the party system in Thailand suddenly became petrified into dominant systems which under parliamentary systems means that Thaksin prolonged extended rule.  The literature on constitutional democracy warns us that the losers’ consent has to be there in order to see a democracy functioning.  If losers cannot see any chance of coming back, it will boycott elections – which it did in the Thailand setting, which I believe has something to do with the recent coup.

So the big point, point number one which I elaborated, simply says that the flawed party systems aggravate democratic governance problems that we find in all four polities.  This doesn’t mean that one cannot find fault with the way that the constitution was crafted in the four polities.

Let me now turn to points number two and three, and these are minor points.  It seems to me that the president’s legislative relations are very well codified in Manila and Seoul, making both highly [indiscernible] presidential system in both letter and spirit.  What really brought the problems – the wounds, if you like – to the Philippines and Korea are micro-rules, such as split tickets for presidents and vice-presidents in the Philippines, such as the non-concurrent election in South Korea, such as one-term limits for the president in the Philippines and South Korea.  Because under these micro-rules, there is every incentive for legislators to confront rather than compromise or work with the president.  Incentive to confront rather than compromise is stronger if, for example, presidential elections and legislative elections are not held concurrently.  Both sides can claim legitimacy, can claim the mandate to rule.  Is the latest election a better reading of the people’s will, or is a larger share of the popular vote a better one?  One-term-only presidents means that the president is a sort of lame duck from the very beginning.  In due course, legislators – whose term can be continuously renewed – may be inclined to wait out a president if that president is not to their liking, rather than doing business with the president.

What I’m saying is that basically the other three constitutions are fine macro-structure wise, but they sort of passed these micro-rules that ruin the whole thing.

Taiwan is different.  In Taiwan, election cycles have been somewhat synchronized – not really synchronized.  You still don’t have concurrent elections but they have, so to speak, a honeymoon election.  The presidential election and then three months later, parliamentary elections – quite close.  Split tickets have been avoided, one-term limits have been avoided as well. 

But the problem with Taiwan’s constitution is what has been elaborated in the first panel, which is the messy structure of checks and balance among the five branches of government, and also very nebulous and sort of unspecified relationships between the legislature and the premier and the president.  If you like, the president is weak vis-à-vis the legislature – and I have some indicators to show that, if we can do that in the Q&A – but strong vis-à-vis the premier.  The premier is weak vis-à-vis the president and yet is accountable to the legislative yuan.  So the division of jurisdiction between the president and premier is not clear and this causes problems, even if you have a unified government.  Even in pre-2000 Taiwan, you had that conflict between the premier and the president within the same party, the KMT.

So what I’m saying is the macro rules are getting Taiwan down, whereas the micro rules are adding problems for Korea.

Finally, a very brief third point.  Frequent amendments in Taiwan is probably unavoidable because of historical reasons – Taiwan democratized gradually and lagged the democratization process of the other three, which came by sort of big bands rather than by a gradual process – by popular uprising, that sort of thing.  Therefore they used the occasion to sort of clean the slate, you had a wholesale replacement of elites and therefore new elites can do [indiscernible] to write a new constitution.  That’s a first reason why Taiwan did not create a constitution, because all the elites are still there while you’re democratizing, revising the constitution.

A second reason is that Taiwan’s constitutional making, the new constitution, is often regarded as a sort of taboo issue for Beijing and perhaps for Washington as well.  Taiwan cannot sort of clean the slate, start the whole thing from scratch.  If you allow me to use the political lexicon used in this country two or three years ago, when it came to the debate on how to end the filibuster, the “nuclear solution” is simply not available for Taiwan to revise its constitution, to clean the slate and write a new constitution.

So they continue to revise the constitution incrementally, about six or seven times.  Each time it causes concern and indeed consternation in Beijing, that sort of thing, and also [indiscernible] pressures.

My take is that if we from the outside continue to – let me say this first.  American concern about Taiwan’s constitutional amendment, about the changing of the national name, that sort of thing, is probably legitimate.  Probably it’s necessary because after all Taiwan is a security consumer.  Its security depends on the United States, which is the security provider.

But the constraint imposed from the other side of the Strait on Taiwan not to do that probably flies in the face of the majority of Taiwanese for a long time.  That would probably lead the majority of Taiwanese to say that our constitution is always incomplete, as the presenters of the first panel said.  We cannot have freedom to write our own constitution or to change our constitution in the right direction. 

Here I have a reference case.  If you look at Thailand, Thai constitutions are never as legitimate as the constitution in South Korea and the Philippines because Thai constitutions, most of them – not all of them – were often written under the watch of the Thai military.  You have a [indiscernible] power player there, laying down some kind of parameters and some taboo issues.  Same thing here in Taiwan.  I mean, 72 percent of the folks, according to recent surveys, would like to see their constitution govern only Taiwan and small islands around rather than mainland China.  And 75 percent, if I remember correctly, say that we’d like to have constitution for 23 million people rather than 1.2 billion people.  So they should have a chance to articulate that.

However, they should also exercise some kind of constraint, it seems to me.  After all, constitution-making, constitutional revision, is not just a good governance question.  It may also be a security issue.  So some sort of due concerns from outside is fine, some kind of self-restraint from inside is fine.  But if you set the ground rules for them, that will be bad for Taiwanese constitutional development.  Thank you.

Donald Horowitz:  I was at a Chinese restaurant a couple weeks ago and I got the following fortune cookie: “Present your best ideas to an eager and welcoming audience.”  If you do your part, I’ll do mine.

I’ve been working for years on constitutional design around the world and I’m going to talk about constitutional processes.  My thesis is that the process you choose should depend on the problems you face.  You shouldn’t choose a process a priori. 

I’m going to delineate three types of constitution-making processes and suggest that Taiwan’s problems put it clearly in my third category.  I had dinner last night with Jiunn-Rong and he suggested that maybe it’s not so clear that it’s in my third category, but bear with me anyway.

Constitution-making is often performed by a flawed process that risks producing seriously flawed results.  All you need to do is take a look at Iraq, which had a terribly flawed constitutional process, and you can see the magnitude of some of the results.  I’m not saying that everything that’s gone wrong in Iraq is attributable to the constitution-making process, but quite a lot of it is.

There are a great many pitfalls to constitution-making.  First of all, constitutions tend to be made in times of crisis when the existing arrangements have been shown to be illegitimate or ineffective.  That means that they’re made in a constricted timeframe, usually with deadlines.  They’re made by people who haven’t made constitutions before and will never make a constitution again.  There’s a lot of lost knowledge from one constitutional process to another. 

There are various biases at work in constitution-making.  Let me enumerate two.  Model bias, that is to say, many constitution makers want to emulate the most democratic countries and follow those constitutions, or they want to emulate their ex-colonial power, or others in the region, or they want to follow the constitution of the most influential foreign advisor on the scene at the moment.  Model bias is a big problem because it deflects people away from the problems in their country and off to the solutions from other countries.

There’s also historical bias.  A great many constitution makers want to avoid problems encountered in the past.  Notice they’re doing planning for the future but they’re doing it in a backward-looking way.  They often try to create institutions that are different or opposite from the ones they had in the past because they didn’t like the way things turned out in the past.  Whether those opposite institutions are apt for the present and the future is another matter.  And they often misperceive the nature of their own history – what’s been tried and how well it’s done.  Northern Ireland is a classic case.  When Northern Ireland made the Good Friday agreement in 1998, all of the makers of that agreement assumed that they tried everything else except the consociational dispensation that they eventually arrived at.  They were wrong – they hadn’t tried everything else.  But they thought they had – they agreed that they had.

Fifth, the actors in constitution-making often have asymmetric preferences and their ability to see what’s in their short-term interest often overwhelms their planning capacity.  It’s a lot better if the actors don’t have visibility about the way things will work out for their own interests and preferences.  We were very lucky in the United States in 1789 because we made our constitution before the party system had developed and it was not possible for people to ask the question, what’s in the interest of our party?  There were some other interests, vaguer interests, at stake but not those specific partisan interests.

So for all these and other reasons I could enumerate at great length, constitution-making is a process fraught with constraint and capable of going awry. 

A priori admonitions about the right process abound.  Some scholars and practitioners have been emphasizing the virtues of public participation and transparency in constitution-making.  They contend that broad public ownership of the document is a transcendent value. 

They exaggerate the benefits of public participation.  If we believe in representative government, the constitution should hardly be exempt from it.  The constitution is a complex matter and most ordinary people have no incentive to invest in acquiring the requisite information to deal with it in a sensible way.  Some of you may know the literature on rational ignorance.  Here’s a perfect case for it.

There’s also a big tradeoff between participation and transparency on the one hand and expertise on the other.  Some constitutional goals can only be achieved if experts are deployed to think clearly, to bring pertinent comparative experience to bear, and to draft carefully.  These are tasks that constitution-makers often have trouble with.  Recall model bias and historical bias.  They’re not tasks best performed in the light of day with large numbers of participants.  Transparency is important when there’s distrust of the regime but it’s less important when distrust of the regime has subsided. 

It’s often said too that the constitution should be a negotiated document.  Of course that’s inevitable up to a point, but there’s also a tradeoff between negotiation and coherence.  Bargained outcomes have a lot to commend them.  Everybody gets something in a good bargain.  But the parts may not fit together.  In constitutions that are devised for conflict reduction in particular, the fit of the parts is often a major problem.  Some societies need strong, coherent, even redundant institutions to deal with their problems.  Severely divided societies along ethnic and religious lines are that way.  They need a strong ensemble of conflict-reducing mechanisms and a wholly negotiated process will not produce them.  It will produce some of this and some of that.

Let me be more specific.  If the problem is simply the public acceptability of the deal and there is indifference among particular institutions chosen – after all, many countries can live with some standard version of parliamentary or presidential institutions – then by all means either the politicians or an elected constitutional assembly can do the deal with a lot of public input, more or less in the open, and the draft can be ratified if necessary by the public in a referendum.  That’s model number one: open, public, transparent.

If, however, the problem is the difficult one of crafting a set of arrangements that will enable conflicted groups to share power in a country that needs both conflict reduction and democratic government, then ordinary majoritarianism won’t work and a heavy dose of expertise is called for.  An expert body needs to be commissioned and it needs time to study and work quietly to devise a consistent plan that has a fighting chance of creating an arrangement that will not produce zero-sum results among the ethnic or religious groups in conflict.

You know – or you may not know, but you should know – there are two main contending approaches to the kinds of institutions required in such a society – that is, an ethnically or religiously divided society.  One kind is the consociational set of institutions.  That’s a regime of group guarantees and quotas.  The other is the so-called centripetal regime, a regime of incentives for inter-group moderation.  I’m a strong proponent of the incentives view and well known as such, but either way you go, it’s necessary to have a consistent ensemble of institutions to get there.  That means experts working behind closed doors.

There are models for this kind of process.  I won’t bore you with the details but there are countries that have done a creditable job of doing this kind of constitutional engineering.  I want to call this problem number two: the problem of severely divided society, and the kind of process that you need for it.

But suppose you have a third problem: a constitution that is inefficient but has considerable claims to legitimacy for some significant segment of the population.  If you follow either of the first two processes in these circumstances, you risk a serious challenge to the legitimacy of the product.  If the politicians try to do a deal more or less in public, they will fail.  Those who represent the segment attached to the old constitution will not agree to scrap it.  If the second procedure is followed, either the experts won’t agree or ratification will fail because there’s no way around the conflict between the old constitution, with its loyal adherents, and whatever is to replace it.

Indonesia confronted this problem after Suharto fell.  The 1945 constitution of Indonesia had been drafted in haste, was intended to be temporary.  It had many defects – a view of state power that left little room for human rights.  The constitution seemed to give law-making power to the president and yet referred to a super-legislative body, the MPR, as possessing “sovereignty.”  On one reading the president could do as he wished.  It was said in the constitution, “He holds the power of government.”  Sukarno and Suharto read it that way.  On another reading, the MPR was truly supreme – it had sovereignty, after all.  With Suharto gone, the MPR – with many unelected members, by the way – began to assert its powers, including the power to choose and remove the president despite the president’s fixed term.

The rule of law was hard to find in the constitution and was not enforced.  In their own sarcastic way, the Indonesians said, “Britannia rules the waves; Indonesia waives the rules.”

Despite all its faults, the 1945 constitution had a considerable base of support.  Indonesian society is divided into several streams.  One very big line of division concerns religion.  Secular nationalists associated with Megawati Sukarnoputri, with in 1999 a third of the vote and a third of the seats in parliament, but actually a lot more support than that when you count secular nationalists in other parties, and many of whom were in the army – secular nationalists were deeply attached to the 1945 constitution.  It was associated with the anti-colonial struggle.  It was the product of a time when secular nationalists were in the ascendancy.  It had been reaffirmed by Megawati’s father, Sukarno, when he restored it in 1959.  It embodied concepts of pansa shila [phonetic], the five fundamental truths that nationalists wanted the state to live by.  Many in the secular nationalist camp wanted no change in the 1945 constitution, or as little as they could manage.

Indonesians, for a variety of reasons, were afraid of splitting the society.  You remember that Indonesia has a very long history of mass violence and bifurcation and cleavage.  So they did not adhere to a deadline.  They awaited a consensus on everything and they took more than four years to produce a new constitution.  I don’t mean they waited four years to start.  They started immediately and they proceeded over the course of four years to produce a new constitution – or rather, a new old constitution, because they merely amended the 1945 constitution and in a way that preserved the pansa shila [phonetic] preamble and the constitution’s overall form, but changed its substance – and listen to what they did.  They created for the first time a directly elected president, a separation of powers, checks and balances.  They virtually eliminated the super-legislature, the MPR, except for a few emergency functions.  They added a constitutional court as in earnest of the rule of law.  They produced a de facto federalism in a nominally unitary state.  As a matter of fact, sardonically enough, the Indonesians describe Indonesia as a unitary state with federal characteristics.

So they eliminated the constitution’s dysfunctional institutions, all the while preserving consensus and keeping the secular nationalists attached to the process and to the constitution – all because they proceeded by a series of amendments.  Not, I want to say, ad hoc amendments and not incremental amendments – amendments designed to do a thoroughgoing renovation but each amendment reflecting the consensus that had been achieved as of that point and then moving on to the next one to develop a new consensus.  So not what Taiwan has done in the 1990s – I want to distinguish this process from the ad hoc series of amendments.  It’s a different story altogether.  But this is an amendment process, it’s not a new constitution as such.  They didn’t scrap the 1945 constitution, which richly deserved scrapping.

A side benefit of their gradualism, incidentally, is that they had repeated opportunities to revisit past decisions.  In other words, they had the chance to correct errors.  Error correction is very hard to build into constitutional processes because once you have a new constitution, interests quickly congeal around whatever institutions are created and it’s very difficult then to go back and fix.  But while things are still open, as they were here, it is possible to go back and fix them.  It’s a very important side benefit.

Now I want to turn to Taiwan and I want to suggest that Taiwan has a type three problem.  A polarized party system is one part of it.  A segment of the population attached to the old constitution, a completely dysfunctional, Confucian, five-branch constitution overlaid with a poorly constructed French semi-presidential system.  By the way, not all semi-presidential systems are created equal.  It’s the particular configuration in Taiwan that’s the problem.  If, as President Chen Shui-bian would presumably like, there’s to be a one-shot redrafting, there could be great polarization as a result.

The Indonesian way of gradual amendment is more promising.  But in Taiwan of course, ratification by referendum of any amendment encounters the hurdle we discussed in the first session.  It’s a big barrier to proceeding by amendment, which is why I asked earlier whether we couldn’t get rid of that barrier first.  I don’t mean eliminate ratification, but make the threshold a more reasonable one.  Otherwise if you produce a series of amendments, you’re not going to have the turnout that’s required and you will have to resort to what Jiunn-Rong calls the four-year cycle.  By the time you’re done with this process, it’ll be twenty years and that’s no good.

The stakes however in Taiwan are very high.  Here I want to say something related but not exactly the same as I said a moment ago.  Taiwan has three tendencies, not two tendencies, on the major issue of relations with China.  All the surveys show that.  The constitutional issue is bound up with these three tendencies.  The pro-unification tendency – okay, I understand it’s theoretical.  But there’s still the pro-unification tendency.  There’s the pro-independence tendency, maybe less theoretical – or maybe equally theoretical.  But a large middle in favor of the intellectually unsatisfying but practically satisfying status quo.

In this respect, Taiwan resembles Northern Ireland before 1998, before the Good Friday agreement, when moderates greatly outnumbered hardline unionists and hardline republicans.  We know this from sample surveys in Northern Ireland, that moderate tendencies were in the ascendancy right before the Good Friday agreement.  In fact, all through the 1990s.  An inapt constitution in Northern Ireland has shrunk the moderate middle.  We now know that from surveys and from election results, so that extremists have now won elections in Northern Ireland that they could not possibly have won before the Good Friday agreement – all because of an inapt constitutional dispensation.

Taiwan should act cautiously to avoid such an outcome.  The prevention of polarization, the support of the people in the middle, is always a major but neglected goal of constitutional processes.  Thank you very much.

Richard Bush:  I’d like to thank Gary and Dan for inviting me