It’s the Constitution, Stupid

The Center on Democracy, Development and the Rule of Law (CDDRL) at Stanford University recently convened a group of international experts to assess the state of Taiwan’s democracy and debate the need for constitutional reform. The event featured legal scholars, political scientists, and government officials—including former premier Jiang Yi-huah—from the United States, Europe, and Taiwan, who explored the performance of the nation’s key governing institutions following democratization.

Participants generally agreed that in the near future, prospects for changing the constitution remain unlikely—“the moment has passed” to marshal the political will to fundamentally alter Taiwan’s governance structure. Nonetheless, the concept provided an instructive lens through which to view Taiwan’s evolving democracy and generate a slate of possible adjustments in the political system.

A historic election approaches

Next year’s elections will be a historic occasion, marking the 20th anniversary of direct presidential elections—the sixth time the Taiwanese people will choose their own leader. With polls suggesting DPP candidate Tsai Ying-wen in the lead, the nation may end up electing its first female president, experience the third alternation in power between governing and opposition parties, and could conceivably seat the first DPP government that controls both the presidency and the legislature at the same time.

If this happens, Taiwan will face a “different kind of political reality” according to National Taiwan University (NTU) law professor Yeh Jiunn-rong, and begin a new “experiment in democracy.”

The elections will take place against a backdrop of increased citizen activism, from anti-nuclear demonstrations to the youth-led Sunflower Movement. The public has expressed extreme dissatisfaction with President Ma Ying-jeou’s policies that have steered Taiwan closer to China, risking national sovereignty with uncertain gains for the broader populace.

Ma’s cross-Straits agenda has also provoked palpable discomfort about over-reliance on the Chinese economy and questions about how the opaque “black box” approach to negotiations will impact the democratic island’s future.

Amending the country’s “operating system”

During the tenure of Lee Teng-hui from 1988 to 2000, Taiwan’s first popularly elected president, there were five overhauls of the Republic of China (ROC) constitution, as the country moved from authoritarianism toward full democracy. A single amendment took place during the Chen Shui-bian administration that followed. Since then, there have been no other major efforts at revision.

What remains in place today is a five-branch structure, as envisioned by Dr. Sun Yat-sen. In addition to the traditional tripartite division of legislative, judicial, and executive branches seen in other countries, the ROC constitution features an additional Examination Yuan to manage civil service exams and a Control Yuan to audit the other branches.

Since a constitution serves as the “operating system” of a country, the reluctance to further amend it may actually indicate a certain stability in Taiwan’s democracy—a solidifying respect for the rules of the game.

Indeed, the effects of constitutional reforms may be achieved, if reform itself is impossible, through new statutory laws, executive prerogative, and intra-party reforms governing the procedures of the Legislative Yuan.

Governance challenges in a democracy

The ability to pass meaningful legislation and impact the lives of a nation’s citizens is crucial for the Taiwanese government—indeed a challenge for all democracies. “To build legitimacy, democracies have to perform,” said Kharis Templeman, the manager of the Program on Taiwan Democracy and event organizer. “Democracies need to be able to govern.”

Despite the KMT’s dominance of both the presidency and legislature under Ma, studies by National Cheng-Chi University scholars Sheng Shing-yuan and Huang Shih-hao indicate the government has not been able to advance much of its domestic agenda in Taiwan, despite multiple cross-Straits trade pacts.

At the heart of the matter lies an uncomfortable relationship between the presidency and the legislature, since Taiwan has a semi-presidential system. Under the current constitution, the president does not have much nominal power; it is the premier who is the titular head of government. Yet the premier serves at the president’s pleasure, though he or she can potentially be forced out by a vote of “no confidence.”

Though the president appears to sit at some distance from the legislative process and everyday policymaking, the public still expects the president to lead. Thus, the president in reality ends up seeking ways to set the agenda, at times putting the premier in a position of great difficulty.

But while some experts suggested a parliamentary system would perform better than a presidential one, the ability to vote for the presidency has become embedded as a political right in Taiwan and could prove difficult to take away from voters.

Re-organizing the legislature

On the other hand, the legislature has several means to stymie the executive agenda. Internal Legislative Yuan procedures are little known, even among Taiwanese, but of immense importance. For example, legislators representing districts have introduced numerous bills addressing particular concerns of their constituents. Though this action may reflect governmental responsiveness, if these personal bills occupy too much of the legislature’s time, they limit attention for national-scale issues.

Several experts also pointed to the inter-party caucus negotiation system as a major sticking point. Any caucus with three or more legislators takes a seat on a committee that can block legislation from reaching the full Legislative Yuan—what Templeman called “veto players.”

Reforming this caucus system (sometimes referred to as the “Cross-Party Negotiation Committee”) will be crucial to smooth the functioning of government and allow a legislative majority to pass laws. Fortunately, such a change can be achieved with statutory law and does not require any constitutional reforms, thus remaining in the realm of political possibility.

Finally, if not accompanied by a reform of internal Legislative Yuan procedures, recent calls for greater numbers of proportional representation seats could lead to increased gridlock, as more parties gain the ability to act as obstructionists.

Given the ability of so many veto players to block legislation, it may be difficult for a future President Tsai to advance a coherent domestic agenda, even with a DPP majority—a point that few voters seem to be aware of. Unless the Legislative Yuan’s internal procedures are revised following DPP electoral victory, the public will need to temper their expectations for rapid progress.

Democratic silver lining

A greater sense of optimism was apparent in other discussions about streamlining the Control Yuan’s duties and reaffirming the role of the Constitutional Court, the earliest to operate in Asia.

It was also revealing when Academia Sinica researcher Michelle Hsieh unpacked recent economic performance data, showing that if the IT-electronics sector is disaggregated, Taiwan’s small-and-medium enterprises in other sectors such as metals and machinery are actually thriving, providing a more optimistic rejoinder to the perceived mainlandization of Taiwan’s economy.

These developments may prove positive for democracy, since influence remains spread among many citizen-entrepreneurs, rather than concentrated in the hands of a few large conglomerates.

Democracy is healthy and evolving

The good news is that Taiwan’s democracy exhibits great health and vitality. Though there are certainly legitimate complaints about “black box” politics and desires for more effective governance, a comparative perspective shows that Taiwan actually remains among the most vibrant democracies from the Third Wave.

Civil liberties slipped somewhat occurred during Ma’s tenure, according to the Freedom House democracy rankings, but Taiwan has avoided authoritarian backsliding (Hungary), the cycles of prolonged street protest followed by military coups (Thailand), or the overt and pervasive corruption (Philippines) that have plagued other less-consolidated democracies. (And despite pessimism about democratic recession globally.)

If Taiwan takes steps to improve governance, such as reforming procedures for passing bills in the legislature, while maintaining—or even increasing—the broadly representative character of government, it will remain a sunny reminder of what is possible with human freedom, and burnish its role as an encouraging example to other democracies worldwide.

(Feature photo of the US constitution, by Josh Hallett on Flickr, CC BY-SA 2.0)