Taiwan’s Transitional Constitutionalism
Jiunn-rong Yeh
Distinguished Professor of Law, National Taiwan University
1.
Forward
Sitting in the student dorm of Yale Law School, I read outdated newspapers
from home announcing the lifting of martial law decree. Not long before then, I was
requested by a lawyer friend to cast a vote from abroad in order to get the desired
“regime change" in the Taipei Bar Association that had long been controlled by
lawyers of military origin. That was the year of 1987.
In less than one year, I finished my JSD degree and began my legal teaching
career at National Taiwan University. These teaching years have been a great
combination of academic research and social involvements in constitutional reforms.
After the first ever regime change in 2000, I spent four years in the DPP government,
serving two ministerial positions consecutively. In the 2005 constitutional reform, I
was elected to the mission-oriented National Assembly and served as the last
Secretary General of the National Assembly.
Ever since my first day of my teaching in NTU, I strongly felt unconventional
transitionality in all aspects of development in Taiwan that has not been fully
understood by the international community. In the flux of change, I have been
analyzing Taiwan’s development issues from transitional perspective. The
unconventionality of transitionality observed at home has rendered many established
models of constitutional laws unfit in the dynamics of political reform and social
change.
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In this plenary address, I would like to focus on constitutional reforms in light of
Taiwan’s dynamics of change against the backdrops of democratization and legal
developments over the last two decades. The constitutional underpinnings may
provide foundations for further observation of Taiwan’s development in other aspects
such as regulatory reforms and changing roles of legal institutions and civil society.
2.
Two Decades’ of Constitutional Reform
Constitutional change may take various forms including constitutional revision,
constitutional interpretations and political actions. While there have been strong
implications of constitutional change from judicial review and political realities as
happened in Taiwan, constitutional revisions remain as a primary vehicle for
constitutional change.
2.1. Before Constitutional Revisions: The Temporary Provisions
The existing Constitution was promulgated in China in 1946 as a result of
partisan negotiation. Since the relocation to Taiwan in 1949, the Nationalist
authorities had maintained that the Constitution could never be revised in order to
claim the legitimacy for the whole “China”. This no-revision policy was in fact a
refusal to establish a constitutional democracy tailored to Taiwan. As it became
apparent that constitutional changes were necessary to facilitate power consolidation,
the authorities added Temporary Provisions to the Constitution without altering the
"main-body" of the text.
Before democratization, constitution was distorted to an extent to support an
authoritarian regime. Various constitutional requirements were functionally disabled
by Temporary Provisions for power consolidation to President Chiang Kai-shek.
Before the beginning of political liberalization in the 1980s, these Temporary
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Provisions not only legitimated authoritarian measures but also deterred necessary
constitutional revisions to cope with social changes. Within this framework, the
Martial Law Decree was declared, and other restrictive legislation in the name of
National Mobilization against Communist Rebellion promulgated. In the shadow of
political mobilization and power consolidation, economic policies were at the sevice
of political inspirations. The state machinery intervened extensively in the market by
tightly controlling foreign exchange, imports and exports, and entry into industry, and
instituting state ownership of major industries, including transportation, steel,
electricity, oil and sugar. Through such intrusive regulatory intervention, the state
machinery was able to penetrate into every sector of the society, including farmers'
associations, fishermen's associations, trade unions and local financial associations.
As political reforms began, these Temporary Provisions became the target of
reform, resulting in their total replacement by the Additional Articles.
2.2. Three Phases of Constitutional Reform
Constitutional reforms in Taiwan may be summarized into three phases. The
need to respond to political crises has driven consecutive constitutional revisions.
These crises came both from the regime’s legitimacy in democracy inwards and the
regime’s legitimacy in the international community outward. Together, they drove the
regime to reinforce its representation both inwards and outwards.
In the first phase of constitutional change, which encompasses first to three
rounds of constitution revisions, measures were undertaken to form legitimacy for the
reinforcement of representation inwards. The second phase of constitutional change,
the fourth round of constitutional revision, aimed at reinforcement of Taiwan’s
representation outwards. The third phase of constitutional change, the fifth, the sixth
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and the seventh rounds of constitutional revision, involved an attempt to solve the
lasting issue of the representative bodies, including National Assemble and the
Legislature.
2.2.1.The First Phase: Constitutional Crisis and the Reinforcement of
Representation Inwards
Constitutional revisions in 1991, 1992 and 1994 all responded to KMT regime’s
representational crisis arising from aging national representatives that had occupied
their seats ever since 1948.
When KMT government retreated to Taiwan, it faced both identity and
legitimacy crises. On the one hand, it needed a basis to legitimize its claim over
Mainland China’s sovereignty after its retreat. On the other hand, it needed a basis to
legitimize its rule over the Taiwanese people as a non-native regime.
The representatives of the National Assembly and Legislature as elected in the
Mainland provided a ready solution to these crises. They were elected by people in
the Mainland China. Therefore, as long as they remained representatives of the
Legislature, which now located to Taiwan, the KMT regime could continue to claim
its representation over the Mainland China. Technically, this was made possible by
Interpretation No.31 of the Council of the Grand Justices, a functional constitutional
court, which extended those representatives’ term indefinitely as long as “the country
was under crisis and the holding of a second national election was impossible.”
However, as the old representatives passed away throughout years and the
people’s outcry against a never re-elected Legislature increased, the Legislature as a
basis for KMT’s ruling legitimacy gradually deteriorated. This led to a new
constitutional crisis for the KMT regime.
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The first round of constitutional revision was a response to this quest for
democratic representation. It sought to facilitate the re-election of the representatives
by the people of Taiwan, the only area where R.O.C. government de facto ruled, by
ending the term of the old representatives. Though there was a strong calling for a
new Constitution, constitutional reforms through amendments was the only format
that the ruling authorities could accept. By so doing, ironically, the amendments had
to be carried out in the hands of the then existing National Assembly members whose
indefinite terms were to be terminated through constitutional means.
This first round of constitutional revisions not only terminated the indefinite
terms of national representatives, but also allowed the Constitution to be amended by
new representatives elected in Taiwan with a stronger basis of legitimacy. Other than
these necessary amendments, the text of the Constitution remained intact.
In next year, the ruling authorities launched the second rounds of constitutional
revisions directed to allowing a new president to be elected with better democratic
legitimacy. Some regarded this as a means to reinforce the authority of KMT party’s
leader Lee Teng-Hui. But from a perspective of comparative constitutionalism, this
amendment was perhaps best regarded as another reinforcement of representation for
KMT’s ruling in Taiwan.
Two years latter, the third round of revision proceeded in the shadow of power
struggles within the KMT. The previous amendment did not determine whether the
president should be elected by a presidential electoral college or by the people
directly. This reflected the viewpoint of two factions within the KMT that differed in
their identity with China as the orthodox. The orthodoxical camp feared the Republic
of China would become Republic of Taiwan once a native Taiwanese was to be
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elected directly by Taiwan residents. The resulting amendment eventually allowed the
people to elect the president directly at the cost of a formal split within the KMT.
With these three rounds of revisions passed, the ROC government had
undergone a “quiet” reinforcement of representation inevitable to modern democratic
governance. Hence, although some still regard the KMT as a non-native regime,
through incremental indigenization, the KMT has generally been accepted as a
legitimate regime in Taiwan through relatively fair elections. This is evident in the
fact that the DPP became more cooperative in its engagement in institutional reforms
under current political structures.
2.2.2.The Second Phase: Constitutional Crisis and the Reinforcement of
Representation Outwards
The fourth round of constitutional revisions was passed in 1997 when Hong
Kong was reverted to China. Apprehensive of its future with China, Taiwan needed to
distinguish herself from Hong Kong so as not to be perceived as a part of China and
repeat the fate of Hong Kong. Taiwan became acutely aware of the importance of
being a part of the international community, not only to protect her political and
economic interests, but also to gain more bargaining power when the time comes to
negotiate with China on the table as an independent entity.
With this awareness, most proposals for constitutional amendments aimed at
increasing the president’s power to personify Taiwan sovereignty in the international
community. One of the amendments revoked congressional confirmation in the
nomination of new premier, resulting in more presidential influence over the cabinet.
More importantly, the revisions authorized a controversial downsizing of Taiwan
Provincial government in order to remove the provincial status of Taiwan, a position
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that both PRC and the previous KMT proclaimed, through official purpose being
governmental reorganization for better performance.
The DPP also shared this awareness. Unsatisfied with the speed and
comprehensiveness of constitutional reform, the DPP held an opposite position
against the KMT party in the past three amendments. Yet, as the KMT regime
gradually reinforced its representation, the DPP became more cooperative. By the
time when the National Assembly was drafting the Fourth Additional Articles in
1997, the DPP worked closely with the KMT in a preparatory round-table talk to
address the representation crisis outwards and to counter China’s threat. A sense of
cooperation between major political parties was developed against the backdrop of
constitutional changes despite dissatisfactions addressed by some citizen groups and
individuals.
2.2.3.The Third Phase: Congressional Reform and Public Referendum
2.2.3.1. Before Regime Change in 2000
The initiation of the fifth round of revisions further confirmed that constitutional
revision in Taiwan was an endless enterprise. Reasons of which abound, but vested
interests of the National Assembly as a monopolistic organ for constitutional revision
in each round of constitutional revisions seemed to be a compelling explanation.
Having recognized the possible fate of being abolished in a climate of public outcry
against them, National Assemble members across party line even demanded for more
powers or becoming a chamber in a newly established bicameral Congress. In
response to this demand, both the KMT and the DPP took different positions. While
the KMT tried to answer to the demand in exchange for their full support in the
coming presidential election, the DPP pushed for a total abolishment of the Assembly
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or formation of a brand new Congress. The self-interest driven Assembly members
across party line, coupled with majority enjoyed by KMT, pushed for a final deal
based on incremental proportionality representation. To everybody’s surprise, the
National Assembly passed the fifth round of constitutional revision, of which the
extension of term further to two years became the target of criticism.
In view of public outcry, then Vice President Lien Chen, presidential candidate
for the KMT criticized the action as irresponsible, resulting in expelling National
Assembly Speaker Su Nan-chen from the KMT and consequently losing his National
Assembly membership. The New Party took the initiative to make appeals to Council
of Grand Justices for constitutional interpretation followed by that of KMT. As
developed, the DPP was caught up in a rather embarrassing status.
Despite pressure from political actors, Council of Grand Justices did not render
its interpretation before the Presidential election in order to avoid casting any
implications to the election. On March 24, 2000, one week after the presidential
election, Council of Grand Justice announced Interpretation No. 499, declaring
unconstitutionality of constitutional revisions, including the term-extension and
proportional representation clauses. In keeping with the line of the interpretation, the
National Election Commission would have to hold an election for National Assembly
members before the new President’s inauguration in May 20. It should be surprised
that unpleased by the Council’s ruling, both the KMT and the DPP denounced judicial
activism in Interpretation No. 499..
Despite the constitutional interpretation, the issue of National Assembly
remained unresolved. Like it or not, another round of constitutional revision was
called for. Denouncing the ruling of the Council, National Assembly members vowed
to abolish the constitutional interpretation body for retaliation is spite of public
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denunciation. In the end, the KMT and DPP caucuses of the National Assembly
cooperated to substantially downsize National Assembly but at the same time they
also suspended pension benefits for the Grand Justices as retaliatory measures.
Through this constitutional revision, National Assembly became such a
mission-oriented unit whose members would only be “called” on with an ad hoc basis
by proportional vote if the Legislature come up with a proposal for constitutional
revision or presidential impeachment.
2.2.3.2.The 2005 Constitutional Reform
All the six round of constitutional revisions happened before regime change in
2000 when the KMT for the first time lost the presidency to the DPP. After regime
change, constitutional revisions seemed less likely partly due to the DPP’s minority
status in the legislature and partly due to the rather difficult amending procedure that
required both legislative proposal and the calling for a mission-oriented National
Assembly. Nevertheless, the energy for constitutional reforms gradually built up and
succeeded in the latest revision finalized in 2005. Among seven constitutional
revisions, the latest 2005 reform stands as a bigger departure from the past with its
scope of change and future impacts. In brief, there are two kinds of change embedded
in the 2005 constitutional reform: congressional reform and the introduction of public
referendum in constitutional revision.
The first part of the changes surrounds congressional reform. Three new
measures of congressional reform were finalized: (1) cutting down parliamentary
seats to a half, (2) adopting single electoral district, and (3) dual ballots. These
measures were aimed to improve the political environment of the Legislative Yuan as
well as its functions through devising interlocked measures.
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First of all, under the previous multiple electoral district system, it was relatively
easy for candidates running for legislators to be elected so long as they could
manipulate a specific group of voters. Hence, those who took extreme positions
enjoyed more chances to be elected. The single electoral district system, on the
contrary, is more advantageous for moderate candidates as they have to win the
majority of the votes. In addition, moderate positions taken by legislators will
contribute to more peaceful and rational exercises of their power in the Legislative
Yuan.
Secondly, the dual-ballot system, which is based on the concept of casting one
ballot for favorite candidate and the other for desirable political party, would
strengthen party politics under the democratic political system. Under the new
dual-ballot system, the focus of the election was more likely to shift away from
certain superstar candidates and those who were simply trying to please a specific
group of citizens to major policy debates between the combating parties. This, in turn,
was expected to improve the operational efficiency and dignity of the Legislative
Yuan.
Last but not the least, the measure of cutting down seats in the Legislative Yuan
to a half was in line with the single electoral district and dual-ballot measures. They
were designed to avoid the tendency of localization of the Legislative Yuan and
political parties as too many seats may lead to under-sized electoral districts that in
the end might hamper the policy objectives of introducing the single electoral district.
But, more importantly, downsizing the Legislative Yuan signified a citizen
“punishment” to this notorious political agent that has continuously enjoyed least
satisfactory rates among public institutions in Taiwan.
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The changes in the congressional structure and electoral system as introduced in
the 2005 constitutional revisions have profound and lasting impacts on the
representative politics in Taiwan. With the introduction of the single district system, it
has been widely speculated that small parties such as People’s First Party and Taiwan
Solidarity Union are to be marginalized after a few elections and a two party system is
to be formed. However, the biggest follow-up debate has been the long term
competition between ruling Democratic Progressive Party and KMT, the major
opposition party. There has been a worry among DPP that they would not be able to
win the congressional elections with the new system due to the existing districting
practice that systematically favors KMT as the latter enjoyed long-term advantage in
offshore island districts and aborigines’ districts.
The second major change in the 2005 constitutional reform is the introduction of
a public referendum in constitutional revision process. This involves two steps of
measures. First, the National Assembly, which was vested with the exclusive power to
revise the constitution, was abolished in this constitutional revision. Interestingly, it
was the last National Assembly that voted to abolish itself under dominating public
pressure. This institutional suicide paved the way for the second steps that was the
establishment of a public referendum to approved proposals made by the Congress.
The most salient feature of this procedural establishment, however, has been its
extreme high ceiling in two processes of constitutional revision. On the one hand, it
requires a three fourth majority to pass a constitutional revision proposal. This
requirement has been considered as almost amounting to a consensus in the Congress.
On the other hand, the proposal has to be put on notice and comment for at least six
months before a public referendum that requires the agreement from half of the
qualified voters for ratification. With this rather stringent requirement, a turn-out of
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public referendum for constitutional revisions has to be more than 60-70 % and
approval rate more than 75%. This extremely high ceiling has been the product of
package consideration in the constitutional politics, and its impact is massive.
Major issues and results in each of the constitutional revisions are summarized in
Table 1.
Table 1: Major issue and results of six constitutional revisions
Phases
First
Phase
Major
tasks
Rounds
Major issues
Result achieved
1.Terminate tenured
national
First
representatives
Revision
2.Popular election for
(1991)
national
representatives
Re-election of all seats of the
national Legislature
1. Constitutional
Represen
tationreinforcin Second
g inwards Revision
(1992)
amendment by the
newly elected national
1.The President is to be
representatives.
elected by the people, not
2. Amendment to allow
by National Assembly
the people to elect their
2.Strengthen legal authority
President
for local autonomy
3. Amendment that
allows local
self-governance
Third
Revision Forms of electing the
(1994)
President
Second
Phase
Represen
tationFourth
Re-organization of the
reinforcin Revision
government structure
g
(1997)
outwards
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The President is to be
directly elected by the people
1.A system of
president-parliamentarism
established
2.Downsizing Taiwan
Provincial government
Fifth
Third
Phase
Revision
(1999)( The future of National
Declared Assembly
unconstit
utional)
Sixth
The future of National
Revision
Assembly
Congress 2000
ional
Reform
Seventh
Congressional Reform
Revision
and public referendum
2005
1.Proportional representation
for National Assembly
2.Term extension for existing
National Assembly
Members
1.Substantially downsize
National Assembly to a
mission-oriented conference
2.Remove the post retirement
benefits for Grand Justices
1.Downsizing the seats of the
Legislature to half
2.Introducing a single district
two ballot electoral
system
3.Final abolishment of
National Assembly
4.The establishment of public
referendum in
constitutional revisions
3.
Analyzing Past Reforms: Featuring Transitional Constitutionalism
While the relationship between democracy and constitutionalism has been
complex, constitutional reform in Taiwan has been in tandem with democratization
over last two decades. Constitutionalism as developed in Taiwan has demonstrated a
departure from the traditional understandings of constitutionalism. This new model
that stemmed from constitutional experiences in Taiwan is understood as transitional
constitutionalism.
Traditional constitutionalism views a constitution as the guardian of fundamental
rights through constraining government powers, including limited government,
separation of powers, checks and balances, and judicial review. In this way,
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constitutions are expected to serve limiting functions and making brakes on
constitutional politics. In the context of transitional constitutionalism, however,
constitutions may be expected to play much more active –such as facilitating,
integrating or empowering– roles in stead of just prescribing limitations.
During democratic transitions, when social consensus disintegrated, transitional
societies drifted away from existing legal and social norms. Faced with the crisis of
breakdown, transitional societies must substitute new agendas for old legalities that
were deeply questioned. In such a complex political situations, the agenda of
constitutional reforms –either making a new constitution, revising the old one, writing
a new bill of rights, strengthening the function of the constitutional court, or
reinstituting government system– soon became so dominant as to establish a new
platform upon which political elites of different positions could work together.
Operating this way, constitutional functions during democratic transitions would shift
clearly from constraining government powers to steering reform agendas or even
reconstructing social structures. As a matter of fact, transitional constitutionalism has
extended its functions even beyond facilitation of social integration and reached to
management of reform agenda and substitute of violent revolution.
In addition to functions, past incremental constitutional revisions in Taiwan also
demonstrated a model of constitutional change with distinctive features. They
included transitory constitutional arrangements, unconventional constitutional
adjudication and quasi-constitutional legislation. For instance, in the past seven
rounds of constitutional revisions, many provisions were seen as transitory to buy
time and form further consensus. The 1992 constitutional revision regarding direct
presidential election was a great example. The principle was laid down in 1992 but
the conclusive change was made in 1994. The unconventional constitutional
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adjudication was best presented in Interpretation No. 261. A single judicial ruling was
made possible unseating aging national representatives who had never reelected since
1948. More importantly, quasi-constitutional statutes were promulgated abound
against the backdrop of rapid political changes. Take for example the issue of
transitional justice, although the seven rounds of constitutional revisions have never
taken any measures to reckoning past wrongs, a number of compensatory statutes that
somehow signified the recognition of past injustice and illegality were past during
democratic transition.
4.
Prospective Constitutional Reforms
Given past seven rounds of constitutional revision and transitional complexities
they brought with, prospects of Taiwan’s future constitutional reforms may be best
cast in the light of transitional constitutionalism. For many, the high threshold of
constitutional amending procedure already signaled the impossibility of any future
constitutional reforms and a coming age of constitutional boredom. In the view of
transitional constitutionalism, however, the high threshold may – as a surprise of the
many– gives birth to a new model of constitutional change with built-in consensus
mechanism.
First and foremost, with the high threshold in constitutional revision, there will
be an increasing need for constitutional adjudication by the constitutional court
concerning major policy disputes arising from the failure in timely constitutional
revision. While Taiwan’s constitutional court has shown increasing activism since the
democratic transition, judicial credibility needs to be observed with rising caseload
and expectations. The recent setback in the congressional confirmation of the Grand
Justice nominations has exemplified the fragility of the judiciary in intensified
partisan politics. Still, the functioning judicial review that transformed quite
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successfully from a rubber stamp of the authoritarian regime with Taiwan’s
democratic transition would remain key to future stability of this young democracy.
Secondly, the required high threshold has structurally changed the nature of
future constitutional revisions in Taiwan. Against this backdrop, future constitutional
reform in Taiwan will present a very different paradigm with new scope, new timing
and new process, as analyzed in the following.
NEW SCOPE: Unlike piecemeal revisions in the past, future constitutional
revisions will be carried out in a comprehensive scope due to high threshold of the
required majority in the Legislative Yuan and public referendum as well. Proposed
amendments on single issues are not likely to gather enough momentum to activate
the mechanism for constitutional revision. The most likely scenario for the
constitutional revision to happen in the future will be substantial revisions on the
whole text covering issues from government structure and separation of power
mechanism, human right checklist and its implementation mechanism such as human
right commission, to national policies in economic, social and cultural affairs. Against
this background, the next constitutional reform is most likely to revise on the
constitutional text directly and the format of additional articles will be discarded.
NEW TIMING: Future constitutional amendments are more likely to come
periodically under the high threshold of referendum. In the past, constitutional reform
could be initiated any time a political negotiation is reached among political parties
and elites as National Assembly enjoyed the monopolistic power to revise the
constitution. At one point, the Council of Grand Justices even rendered an
interpretation enjoining the National Assembly from revising the constitution if the
gathering was not originally planned for the purpose (Interpretation no. 314 of the
Council of Grand Justices).
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With high threshold in place, it will be very difficult to gain support from the
majority of voters in a separate referendum. Therefore, combining referendums with
national elections seems to be a logical solution. As a result, periodical national
legislator elections will be a perfect fit for constitutional amendments. While the 2004
peace referendum was controversial as it was set at the same time with presidential
election, the combination of constitutional referendums with national elections will be
considered as necessary measure to meet the constitutional requirements. In the
future, constitutional amendments will most likely take place in every four years, in
tandem with the congressional elections.
NEW PROCESS: Unlike previous constitutional revisions done by elite settlement,
future constitutional reforms will be largely based on citizens’ deliberation though
elite participation remains indispensable. This is especially true as the referendum has
become the key to the success of constitutional reforms of which propositions and
procedures must be fully understood and accepted by citizens. Constitutional
proposals, though negotiated and compromised among major political parties, may
not be approved if citizens are informed and represented. In other words, future
constitutional amendments will not be headed by the National Assembly
representatives or political elites; instead, they will be largely based on consensus
derived from extensive public discussions and participation. It is foreseeable that
proposals for constitutional revisions will be formed through comprehensive public
discussions while the government will only build a platform for the public to
exchange ideas. The referendum mechanism will serve to robust citizen awareness in
constitutional reforms, and a better quality of constitutional culture will thus be
created.
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A new scope, a new timing and a new process illustrated above has formed the
new working paradigm of constitutional reform in Taiwan in light of the 2005
constitutional revision. The constitutional politics driven by constitutional reform will
broaden and deepen the level of public debate. Discussions will focus more on the
comprehensive and significant topics such as human rights and constitution structures,
instead of the representation of specific interests group we’ve observed in regular
elections. Moreover, when the issues of constitutional reform were introduced to
normal politics, the political parties and candidates shall adapt their political
propositions to a more constitution-oriented perspective.
Perhaps even more importantly, constitutional deliberation in the civil society
will be reinforced due to the introduction of public referendum and congressional
resolution with extreme high threshold. While government officials and national
representatives are concerned with constitutional reform, citizen groups are sure to
play a more important role in constitutional space created by the recent constitutional
change. Hopefully, the international community will pay attention to both remarks on
the new constitution made by political actors and the will of the people in Taiwan
regarding constitutional reform. On the one hand, procedures of constitutional
revisions may be more thorough and comprehensive through incorporating different
opinions and ideas. On the other hand, the deliberation by civil society on
constitutional issues may further nourish constitutional cultural for this young
democracy.
5.
Concluding Remarks
The ROC constitution was first revised in 1991, but the seed for reform was
really sawed in unprecedented democratic transitions that began in 1987 when the
Martial Law Decree was lifted. Since then, democratization has gone in tandem with
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constitutional change, including constitutional revision and adjudication by the
constitutional court. With these two legs ready, Taiwan has transformed from an
authoritarian regime to a new constitutional democracy. With the 2005 substantial
constitutional revision, the prospects of Taiwan’s constitutional development
necessarily lean towards more social deliberations as against elite settlement. At the
same time, constitutional court would have to shoulder more functions as the
mechanism of constitutional revision demands for time and becomes more complex.
Analyzing into the dynamics of constitutional change over the last two decades,
one easily finds many salient features in the Taiwan case. With transitory
arrangements and other unconventional constitutional undertakings, Taiwan’s
constitutional change has presented many unique functions and given birth to a new
model that defines transitional constitutionalism. This new model, despite departed in
many significant ways from traditional constitutionalism, has been seen not only in
the Taiwan case but also in the many other transitional stories perhaps including that
of South Korea.
The last remark about Taiwan’s vibrant constitutional development has to be
taken to international stance. In light of the embarrassing international status of
Taiwan and the tension across the Strait, constitutional initiatives are often prone to
external skepticism and even international oppositions. Recently, many initiatives on
grand-scale constitutional reforms –even the making of a new Constitution– have
been criticized and misunderstood as bold steps towards “independence” regardless
from citizen groups or from political parties. This has severely squeezed the room for
constitutional reform and undermined any healthy dialogues surrounding it. It is
important for the international community to realize that Taiwan’s constitutional
development is not just limited to remarks made by major political parties but perhaps
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more importantly, citizens must be given a fair say in any constitutional deliberation
as well decisions. In line with this constitutional development, what the international
community really needs to pay attention to is perhaps less than any troubles that
Taiwan’s constitutional change may cause, but more of the dynamics that her vibrant
constitutional change may present to the development of transitional
constitutionalism.
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