Dr. Yoshiyuki OGASAWARA
Tokyo University of Foreign Studies
President Lee Teng-hui deserves credit for providing leadership of political reforms that achieved a very important and bloodless democratic transition while minimizing societal chaos and hostility. However there has been a price to be paid for his gradual reform process. The Lee Teng-hui administration has to keep some vestiges of the former regime in order to avoid a sudden change of authority and has to emphasize its continuity from the past, so it is becoming difficult for one to gauge the extent of reforms achieved so far by the Lee administration. Of course the main difficulty is related to the fact that Taiwan must proceed with domestic reforms in the face of external constraints unlike anything encountered by any other sovereign nation, namely the legacy and reality of sensitive cross-straight relations with China.
The Lee Teng-hui administration envisaged a step-by-step approach of four consecutive constitutional reforms. While the supreme law of the nation has been modified four times over the past seven years, which raises certain doubts as to the efficacy of such reforms, they should be seen as essential steps in a gradual reformation process. The repetition of piecemeal constitutional reform condenses the characteristics of political structure in Taiwan and Sino-Taiwanese relations. Taiwan was unable to establish a new constitutional system at the same time as it achieved democratization. The rules of the `political game` had to be made in a situation where the game had already started with democratization. It is here that we can inquire into the unique factors and the tradition of flexibility of the Taiwanese government's framework.
In this article, I intend to consider Taiwan's democratization from the viewpoint of the constitutional reform and to explore the meanings and problems of Taiwan's democratization in terms of constitutional provisions. Moreover, I will discuss the relation between the problems inherent in the original Constitution of the Republic of China and the political realities unfolding in Taiwan, including the periods after democratization.
1. The Structure of the Constitution of the Republic of China
The constitution of the Republic of China, enacted in December 1946, provided for a National Assembly, a President, and the division of state into five branches as based on Sun Yat-sen's Three Democratic Principles. The five branches of national authority were separated into executive, legislative, judicial, examinatory, and control powers. The President was to serve as the head of the Republic, and the National Assembly would elect the President and the Vice-President. Although the Republic of China's Constitution was regarded as a five-branch division of authority, a rather unusual arrangement even internationally, in actuality there was a separation into seven branches if one includes the President and National Assembly. The relationship between the branches` mutual checks and balances was flawed and the meaning of the division of state authority into seven parts was not entirely clear.
The main problem within this seven-part division of state authority was the position of the National Assembly and the President. While the adoption of a bicameral legislature is nothing unusual, the way in which the Legislature and, in particular, the National Assembly are equipped are the constitution's distinctive features. The National Assembly is a body distinct from and in addition to the ordinary legislature. This was originally based on the ideas of Sun Yat-sen whereby the system of national authority focused on none other than the Nationalist Party (KMT) and the logic of yi-dang-zhi-guo: 'governing the nation through the party'. In other words, the KMT would command the national system through leadership in the National Assembly. Such command was premised on the uncontested position of the KMT, much like the concept of the role of the Revolutionary Vanguard Party within the former Soviet Constitution's Supreme Soviet.
A draft constitution that reflected the ideas of Sun Yat-sen, entitled the "Promulgation of a Draft Constitution of the Republic of China", was completed in May 1936. In this draft, the National Assembly was conferred authority to select President, the directors and delegates of executive, legislative, judicial, examinatory and control branches. Without a doubt, the KMT intended a system of complete control of the state apparatus through the National Assembly and the President. A point of considerable difference from the Western European idea of the three-branch division of state power was that the Legislature and the judiciary were not independent from but unified with governmental administration.
At the final stage of the constitution's enactment, however, the political situation changed considerably. In January 1946, the KMT, the Chinese Communist Party (CCP), the Chinese Youth Party, the Chinese Democratic Alliance, and some non-partisan groups began a Conference for Political Entente. Required to make considerable concessions, the KMT substantially modified the contents of the draft constitution. The National Assembly was lowered in rank and deprived of substantive power, and some elements of a parliamentary-cabinet system were adopted. The aim of the KMT to govern through the President and the National Assembly was frustrated. During the Central Committee's Plenary Session in March of the same year, nonetheless, the KMT proclaimed that it would unilaterally revise the decision of the earlier Conference for Political Entente in order to establish the predominance of governmental administration. With this, cooperation between the KMT and the CCP ruptured and they were plunged into civil war.
In order to enact its constitution, the KMT convened the National Assembly in November 1946. Both the Chinese Communists Party and the Democratic Alliance, formerly participants in the Conference for Political Entente, boycotted the Assembly. However, the draft constitution that was presented to the National Assembly did not return to Sun Yat-sen's vision of a centralized government, but rather partly incorporated elements of the West European three-way division of power. This was the result of the change in political situation during the period whereby the KMT in an effort to secure the cooperation of various factions such as the Chinese Youth Party could not carry through genuine Sun Yat-sen ideology in unmodified form. The result was neither a five-branch nor a three-branch division of authority, but a constitution that may be aptly described by the Chinese proverb "neither a horse nor a donkey".
In the end, the constitution of the Republic of China was concluded in the aftermath of World War Two, and in the debate that followed the Constitution was jumbled together with the compromises and political bargaining among internal factions within the KMT and other political parties. This resulted in a mix of Sun Yat-sen's five-branch constitution, European and American constitutional principles, Soviet-styled Supreme Soviet structure, and the traditional Chinese `Examinatory` and `Control-branch` ideas. This confusion is later connected to the controversy surrounding Taiwan's current constitutional reform.
1-a The President and the Prime Minister
I intend to investigate in somewhat more detail the problem of checks and balances among the National Assembly, the President, the Prime Minister, and the Legislature. The Constitution provided the President with the authority to be the Supreme Commander of the Armed Forces (Article 36), to promulgate laws and issue decrees (Article 37), to conclude treaties (Article 38), to declare martial law (Article 39), appoint and remove civil and military officials (Article 41), and to issue emergency orders in the event of a national emergency (Article 43), among others. It is not entirely clear, however, who exercises such authority.
One interpretation is that the Constitution is essentially a presidential system whereby the President alone exercises authority independently. Another interpretation, however, envisions a cabinet system wherein the President acts in a formal capacity but the Prime Minister exercises ultimate administrative power. Those that endorse the cabinet-system idea base their interpretation upon Article 53, "The Executive Yuan shall be the highest administrative organ of the state"; Article 57, "The Executive Yuan shall be responsible to the Legislative Yuan"; Article 37, "The President shall... promulgate laws and issue mandates with the counter-signatures of both the Prime Minister and the Ministers or Chairmen of commissions concerned." Under this interpretation, the President is merely the figure head of state. Zhou Yu-ren asserts that the structure of the Constitution provides the Prime Minister with control of the administrative power and even the many constitutional provisions that empower the President are subject to the Prime Minister's control. In effect, the President may not exercise power independently without the sanction of the Prime Minister.
On the other hand, Xu Qing-xiong insists that the Prime Minister's signature is no more than a procedural formality and the Prime Minister has no real ability to refuse presidential requests. Much in the same way that there is a separation of constitutional interpretations, the scholarly community too is divided in opinions. One point that we should be careful to consider is that while there are possibly more scholars who interpret the constitution as a cabinet system, the political practice in Taiwan has been carried out as a presidential system.
1-b The Executive and the Legislature
The following provisions concern the relationship between the Executive and the Legislature: "The Legislative Yuan shall be the highest organ of the State...." (Article 62); "The Executive Yuan shall be responsible to the Legislative Yuan...." (Article 57); "The President of the Executive Yuan [the Prime Minister] shall be nominated and, with the consent of the Legislative Yuan, appointed by the President...." (Article 55); and "If the Legislative Yuan does not concur with any important policy of the Executive Yuan, it may, by resolution, request the Executive Yuan to alter such a policy." (Article 57) These provisions certainly suggest that the constitution contains elements of a cabinet system.
With regard to the checks and balances system, the Executive can refuse to ratify any piece of legislation and send it back to the Legislature for alterations. On the other hand, the Legislature's check on executive power is as follows: "the Legislature may make a resolution to request the Executive to change an important policy when it does not approve of such a policy." The Executive must respond to this resolution and can request alterations to the bill. As stated in Article 57, paragraph 2:
If the Legislative Yuan does not concur in any important policy of the Executive Yuan, it may, by resolution, request the Executive Yuan to alter such a policy. With respect to such resolution, the Executive Yuan may, with the approval of the President of the Republic, request the Legislative Yuan for reconsideration. If, after reconsideration, two-thirds of the Members of the Legislative Yuan present at the meeting uphold the original resolution, the President of the Executive Yuan [the Prime Minister] shall either abide by the same or resign from office.
At a glance this may appear to guarantee a mutual system of checks and balances, but when we consider the relatively high threshold of a two-thirds majority required to refuse the Executive's request for bill reconsideration, it is fair to say that in actuality this is a dead-letter provision.
On the other hand, we can examine the kind of influence that the Executive exerts on the Legislature. According to Article 57, paragraph 3:
If the Executive Yuan deems a resolution on a statutory, budgetary, or treaty bill passed by the Legislative Yuan difficult of execution, it may, with the approval of the President of the Republic and within ten days after its transmission to the Executive Yuan, request the Legislative Yuan to reconsider the said resolution. If after reconsideration, two-thirds of the Members of the Legislative Yuan present at the meeting uphold the original resolution, the President of the Executive Yuan shall either abide by the same or resign from office.
So even here we can see that, if the President grants permission, the Executive can send back any legislative resolution. Since the Legislature needs a relatively high two-thirds majority to overturn this decision, the Executive in actuality has the equivalent of a veto over the Legislature. The section which states "the President of the Executive Yuan shall either abide by [the resolution] or resign from office" indicates not so much that legislators can give a vote of no-confidence to the cabinet in the event of a two-third endorsement, as the fact that the Executive is guaranteed a superior position.
In other words, even if the ruling party has only slightly more than half the seats of the Legislature, the opposition must still secure at least one-third of the ruling party members to achieve the required two-thirds (to oppose the executive). When the ruling party has occupied two-thirds of the Legislature, a vote of no-confidence is essentially hopeless: the opposition would need to secure the support of over half of the ruling party. If the two-third majority provision was applied to Japan's case of the fall of the LDP government in 1993, the Miyazawa cabinet would have been able to survive the vote of no-confidence. Even though the Constitution states that the Executive shall be responsible to the Legislature, in actuality the Executive holds a superior position.
1-c The President and the Legislature
The only check that the Legislature can exercise against the President is to control the approval of the Prime Minister nominated by the President. In addition, legislators must approve the appointee for the Chief Inspector with the Control Yuan in accordance with Article 104, but the political importance of such a function is not high. Conversely, the President has the power to return bills adopted by the Legislature (Articles 72 and 37). In order to for the Legislature to reject such a presidential request requires, of course, a two-thirds majority. According to Article 44, "In case of disputes between two or more Yuan other than those concerning which there are relevant provisions in this Constitution, the President may call a meeting of the Presidents of the Yuan concerned for consultation with a view to reaching a solution." This can be interpreted as the President occupying the position of arbiter among the five branches of the state. Even until now, however, there has not been a situation where this was required.
On the other hand, there are several provisions in the event of national emergency. The President may declare martial law "with the approval of, or subject to confirmation by, the Legislative Yuan. When the Legislative Yuan deems it necessary, it may by resolution request the President to terminate martial law" (Article 39). With respect to a state of emergency as well, the President may make emergency decrees even "...during the recess of the Legislative Yuan... Such orders shall, within one month after issuance, be presented to the Legislative Yuan for confirmation; in case the Legislative Yuan withholds confirmation, the said orders shall forthwith cease to be valid" (Article 43). These provisions mean that presidential power during times of emergency are subject to the constraints of the Legislature. In such a situation, Presidential authority is kept in check.
Thus, in times of emergency, the President and the Legislature are accorded a mutual relationship, but are not during times of peace with the exception of the legislative approval of Prime Ministerial nominees. Is such a right of approval an adequate check on presidential power? I will explain this in greater detail later, but suffice it to say here that the exercise of such a right of approval can serve as a real check on presidential power in only limited circumstances. Moreover, as explained earlier, the constitutional provisions that guarantee the supremacy of the executive branch make such an approval system a rather ineffective measure.
According to the constitutional system of the ROC, the President may not have direct relations with the Legislature since the Executive is ultimately responsible to the Legislature. In reality, however, the President and the legislative members are in contact, since the President has always been the leader of the KMT who has constant access to KMT legislative members. This makes the actual check of presidential power more difficult. Only the National Assembly has the ability to question presidential responsibilities but only in the event that the control branch issues an impeachment resolution.
Therefore, the constitutional system of checks and balances are only partial and inconsistent. At this point, we need not examine the ROC Constitution in any more detail because a law passed shortly after the Constitution's enactment superceded the Constitution. When the very first national Assembly was convened in 1948, the Assembly passed the 'Temporary Provisions Effective During the Period of Communist Rebellion' which vested the President with broad ranging powers and contained many clauses that nullified various constitutional provisions. It may be said that from the time of enactment, a mere half-year passed before the constitution was negated.
2. "Temporary Provisions" System
In the name of the need to mobilize against Communist insurgency, the "Temporary Provisions Effective During the Period of Communist Rebellion" (hereafter referred to as the Temporary Provisions) was enacted. The President's powers were enhanced to take emergency measures "to avert an imminent danger to the security of the nation or of the people." According to Zhou Yu-ren, the President's emergency measures were still subject to the executive branch's authorization, so the "President's right to take emergency measures is the same as the power wielded before", i.e. still curbed. He interprets, while it is true that the President's powers were expanded, the authority of the Prime Minister was not reduced.
Zhou Yu-ren does not deny that the President's authority was strengthened, but argues that the basis of presidential authority was not just the Temporary Provisions but also as the leader of the KMT. "The KMT has a hierarchical structure whereby the party leader has the final say in appointments and policy which results in the ability of the President to direct the Prime Minister and the legislators through the party machine. The result is that while the President truly wields political power, he is not entirely responsible to the Legislature. On the other hand, the Prime Minister wields little real power but is responsible to the Legislature."
While Zhou's argument is understandable to some extent, there are some difficulties with his interpretation. While Zhou emphasizes the ability of the Prime Minister to authorize and check presidential power, we must also consider the actual ability of the Prime Minister to limit the authority of the President who appointed him. In a situation where the Prime Minister would not `bite the hand that feeds`, we can say that such a check and balance system will be ineffective. The important point of the Temporary Provisions is that it removed the ability of the Legislature to check the President's emergency powers.
Although the original constitution required the Legislature's approval and confirmation, the Temporary Provisions made such a clause redundant. "The Legislature may either change or end Presidential emergency proclamations" according to the procedures set out in Article 57, paragraph. 2, but the Temporary Provisions clearly state that emergency power is not subject to Legislative approval and confirmation as accorded in Articles 39 and 43. So, in actual fact, it is almost impossible for legislators to oppose the exercise of emergency powers. Moreover, as mentioned earlier, the Legislature would require a two-thirds majority to issue a vote of reconsideration. Even if this were possible, it would be the Prime Minister and not the President who would be dismissed.
The articles of the Temporary Provisions are complicated and contain some contradictions that are difficult to understand at a glance, but one thing for certain was that they nullified the original Constitution's system of checks on the President. It is evident that the Temporary Provisions greatly expanded the influence of the President far more than that of the leader of the ruling party. Yokoyama Hiroaki argues that the purpose of the enactment of the Temporary Provisions was to pave the road for Chiang Kai-shek to become President: "The Temporary Provisions that strengthened the political power of a single individual was enacted to supplant the Constitution, in contempt of the rule of law and in favor of the rule of individual."
The Temporary Provisions was amended four times after its enactment. The first amendment in 1960 shelved Article 47 that prevented the President from holding office for three or more terms, and supplanted it with one that permitted Chiang to continue for a third term. The second and third amendments were passed in 1966. The third amendment provided the President with three new powers: the President would be permitted to establish an anti-insurgent organization during the period of rebellion; the President could determine major policy direction during the period of rebellion; and the President could make adjustments in personelle and administrative matters of the central government. Accordingly, a National Security Conference was established with the President as the chairman. The budget and law drafts that were proposed by the Executives were first discussed at the Conference, and then later sent on to the Legislature.
According to Zhou's interpretation, the 1966 Temporary Provisions deserve more attention than the 1948 one because it gave the President political power in both name and reality to decide national policy. Although the original ROC Constitution adopted some important elements of a cabinet system, these Temporary Provisions established a presidential system without any checks and balances. Taiwan's political system was carried out as a presidential system in actuality, and Taiwan's current political culture has been formed as a result of the long-term exercise of presidential authority.
Now, we may consider the position of the original Republic of China Constitution. After defeat in the Chinese Civil War at the hands of the Chinese Communist Party in 1949, the Nationalist Government fled to the island of Taiwan, then a province of the Republic of China. In Beijing on October 1, 1949, Mao Tse-tung proclaimed the establishment of the Peoples Republic China. This was the birth of a sovereign state that effectively controlled the territory and people of the Chinese mainland. If we set aside any moral judgements of the Communist takeover, we can simply see that a single state system that governed a particular territory and people was overthrown, and a new one established in its place. In Mainland China, the ROC ceased to exist and the ROC Constitution was nullified.
Then, how should we understand the Republic of China's Constitution in Taiwan? The rule of the PRC does not extend to and has never extended to Taiwan. The official view of the KMT was that the ROC Constitution remained valid in Mainland China. While the Constitution stipulated that "the territory of the Republic of China according to its existing national boundaries shall not be altered except by resolution of the National Assembly," the article did not delineate these national boundaries. The Constitution, however, specified such provisions relating to Tibet and Mongolia with respect to the election of representatives to the National Assembly, Legislature, the Control Branch, and even provisions on guaranteeing regional autonomy.
The province of Taiwan, though, was barely equivalent in size to the mainland's smallest province. It was now impossible to elect the National Assembly, Legislative, or Control Branch members on the mainland that made up the very basis of the Constitution. It became impossible to honor the Constitution that was devised for the administration of territories and peoples of Mainland China. All Legislative Members were kept on without re-election, becoming the `10,000-year legislators`, and in a single autonomous region, the area of jurisdiction for both the Province of Taiwan and the Central Government overlapped.
If the government stood by the fundamental principles of the rule of law, the National Assembly could have resolved to declare the territory of the ROC as Taiwan, Penghu, Kinmen, and Matsu. Alternatively, the government could have revised the Constitution to suit the proper governance of Taiwan alone. From the point of view of the KMT, however, there was no alternative to its claim to be the legitimate government of the whole of China. Chiang Kai-shek was insistent on returning to Mainland China someday with the original ROC Constitution intact.
The rule of Taiwan was conducted within a legal system composed of the Temporary Provisions, martial law and other unconstitutional measures. The legal system was founded on the very discretionary basis: the ROC Constitution was applied in areas deemed applicable and suspended where the Constitution was inconvenient. This can be seen as a system of `rule of individual power` over the `rule of law` since governance could be conducted by Chiang Kai-shek and the party elite as they saw fit. This regime was legitimized only after the people of Taiwan were coerced into supporting this unusual national goal for a unified China.
3. The First Constitutional Revision (1991)
In January 1988, Lee Teng-hui became President after the death of Chiang Ching-kuo. As a protegee of Chiang Ching-kuo, Lee Teng-hui rapidly climbed the KMT's party hierarchy. Lee Teng-hui's administration had a shaky start and the only basis of support that Lee himself could rely upon was derived from being Chiang Ching-kuo's choice as Vice-President. When the wheels of democratization began to turn, Lee encountered the considerable difficulty of how to reconstruct the constitutional system. Lee-Teng Hui conciliated with the mainlander elite and gradually strengthened his power basis within the KMT, and very cautiously started the process of democratization and the reform of the KMT. If he miscalculated the balance by even a little, his administration could have fallen apart.
Even with a step-by-step approach to democratization, there still stood a major impediment. The only state institution capable of revising the constitution was the National Assembly, but the majority of members were the `10,000-year members` who had not been re-elected since 1948. There was somewhat of a paradox in the process whereby it was up to the least democratic part of the Taiwanese political system, the National Assembly, to initiate democratization. In addition, constitutional revision required a three-quarter majority of a session attended by two-thirds of Assembly members (Article 174) which would be very difficult to muster.
President Lee proposed a National Affairs Conference to achieve a breakthrough. This ad-hoc conference was held under the President's auspices and members were invited from political, business, and academic circles. Since there were no constitutional provision for such a conference, it was regarded as an extra-constitutional assembly. Although it was not capable of making compulsory resolutions, it could sum up the opinions of the members to be used in an advisory capacity. President Lee skillfully maneuvered between the conservative elements within his own party and the democratic movement outside it to develop a theme entitled `one-institution, two-stages`.
The National Assembly had the legal right but not the legitimacy to revise the Constitution, because the Assembly did not represent public opinion in Taiwan. Therefore, the first stage for constitutional revision was to develop a legitimate institution that would reflect Taiwanese public opinion through popular election and the second stage would develop a program to make substantial amendments to the Constitution. This is what was meant by the `one-institution, two-stages` doctrine. This illustrated the contortion of the Constitution that governed Taiwan in the postwar period. Undoubtedly, this was a practical policy that suited Taiwan's actual circumstances, but, theoretically speaking, such a system was a kind of hypothetical legality. In other words, as the basis of governance of Taiwan, the ROC Constitution wasn't able to conform to the general requirements to rule Taiwan, and so rule was to follow the spirit and procedures of the Constitution as closely as possible. This doctrine was designed to keep the continuity of the existing legal system.
Next there was another problem with respect to whether the original constitution should be revised or simply new articles added to it. Those scholars who favored the addition of articles argued that the original constitution did not need to be revised since any alterations would be only temporary until the re-unification of China. Lee Bing-nan and Zhong Guo-yun pointed out that the reason why the original text shouldn't be re-written was not only a historical attachment to maintaining the integrity of the constitution, but that the KMT claimed for many years that it would remain unaltered. After all, the Lee administration chose to enact the Additional Articles rather than alter the original text.
From the point of view of the Lee administration, there was a considerable risk involved with either the establishment of a new constitution or the reform of the original text. In consideration of the split in societal opinion regarding unification with or independence from China, there existed serious potential of inviting a harsh power struggle or societal discord. An expanded stand-off between the differing opinions over Taiwan's state system could have also increased tensions in cross-straight relations. Moreover, the KMT's official `one-China` policy prevented the Lee administration from discarding the Constitution that purported the fictional rule of Mainland China.
Thus, the Lee administration applied those parts of the Constitution that were applicable and made the Additional Articles when it wasn't. As a result, however, those Additional Articles added at the end of the Constitution included a provision that clearly stated that such articles would not be constrained by the original constitution. This created some contradictions between the original and additional articles, but the most important political rules were contained in the additional ones. Consequently, a rather unorthodox constitutional system was developed in Taiwan where in fact there are two constitutions: the original ROC Constitution and the additional provisions that occupied a higher position. This entailed a risk in damaging the integrity of the constitution as well as its position as the highest law of the land.
Despite such problems, it is important to note that these new Additional Articles were the first legitimate supreme laws for the administration of Taiwan. While formally known as the 'Additional' Articles, it was the first law to identify the state with Taiwan ("The Republic of China in Taiwan"), and, consequently, essentially established a new constitutional framework. We can place a high evaluation on Lee Teng-hui's administration for its creativity since he made every effort to progress step-by-step toward this transformation against the background of the existing legal system and power structure.
The National Assembly meeting to enact the first amendments was convened April 8 - 24, 1991 and resolved both to end the 'Temporary Provisions Effective During the Period of Communist Rebellion' and to enact the ten Additional Articles. These articles were mainly concerned with the electoral process for public representatives and with the authority of the President. Articles 1 to 5 were provisions concerned with the electoral process for representatives for the National Assembly, the Legislature, and the Control Body. According to the original constitution, these representatives were to be elected from across Mainland China, but the new provisions nullified this process and established an electoral process for Taiwan alone.
The Presidential emergency powers conferred by the Temporary Provisions were continued. The main difference between the Temporary Provisions and the latest amendments was that although the President could issue emergency orders, "such orders shall, within ten days of issuance, be presented to the Legislative Yuan for ratification. Should the Legislative Yuan withhold ratification, the said emergency orders shall forthwith cease to be valid" (Article 7). Thus, the amended provisions provided for some legislative curtailment of presidential emergency powers, even if after the fact. But, according to Article 43 of the original constitution, emergency command was premised on legislative approval, and the ratification after the fact was only possible when the Legislature was not in session. For the proponents of democratization, this was unsatisfactory. In the future, it is important that the necessary conditions for the actual conduct of emergency power should be clearly written.
Additional Article 9 dealt with the President's authority to construct major state policy: "To determine major policies for national security, the President may establish a national security council and a subsidiary national security bureau." This article was designed to maintain the extended powers of the President as well as those organizations under presidential authority, such as the National Security Council. Opinion among legal scholars regarding this provision over major state policy is divided. Lee Bing-nan and Zhong Guo-yun insist that this provision for major state policy is unclear as a legal concept and are critical of the ambiguity regarding the division of authority between the President and executive body. They also argue that authority of the President conferred through the Temporary Act should be lessened and Taiwan should return to the system provided by the original constitution. On the other hand, Su Yong-qin says that the President should be able to carry out policy concerned with state security. He even asserts the need for the article to clearly state that the National Security Council should develop major policy by which the executive body should be bound.
According to the National Security Council law created after the first constitutional revision, the NSC would be defined as the advisory body to President. The membership of the Council, however, was to be composed of the Prime Minister, Deputy Prime Minister, the Minister of Home Affairs, the Foreign Minister, the Minister of Defense, the Minister of Finance, the Minister of Economic Affairs, the Chairman of the Mainland Affairs Committee, and the Chief of Staff. One could see the preparations for a body to execute national policy decisions on top of the Executive body. The reason why this provision was included in the Additional Articles was that the Temporary Provisions created existing interests that showed an ability to survive. Thus, there are some who criticize the Additional Articles as the `constitutionalization` of the Temporary Provisions.
As a result, the post- Temporary Provisions constitutional system obviously oriented toward not a cabinet system but a presidential system. Although the powers of the President were certainly expanded when compared to the original constitution, this did not violate the spirit of democracy; it merely strengthened the presidential system over the cabinet system as a form of governance within a democracy. After the repeal of the Temporary Provisions, the various other laws that repressed or denied people's basic rights and made possible Chiang Kai-shek/Ching-kuo`s use of coercive power, were also repealed or revised. The revival of the original constitution's protection of human rights is of considerable significance. It would be incorrect to say that this move was somehow a return to dictatorial rule.
President Lee's purpose of the first revisions can be seen as two-fold. First, he intended to restore the legitimacy of representative government and to make substantive revision of the constitution possible. Secondly, he sought to repeal the Temporary Provisions that stood above the constitution and to normalize the legal system. These two purposes were largely realized.
4. The Second Revision (1992)
In accordance with the above-mentioned first revision, an election was held in December 1991 to entirely re-elect the National Assembly. The result was that the KMT won the three-quarters of the seats necessary to carry out constitutional reform. Thus, the KMT was in a position to revise the constitution on its own. The second stage of the 'one-system, two-stages' doctrine was to substantially revise and revitalize the constitutional system of Taiwan but there was no consensus within the KMT on constitutional reform, particularly with respect to the way to elect the President. Thus, a third and fourth revision became necessary.
Contained within the controversy over how to elect the President was not only a debate over whether it should be conducted by direct or indirect means but also a competition between the mainstream and conservative factions, and differing opinions concerning the future of Taiwan. Lee Teng-hui and the mainstream favored direct election of the President. The conservative faction, on the other hand, feared that a direct election would result in a 'President of Taiwan' while, at the same time strengthen Lee Teng-hui's political power. No clear decision was made in either the Central Committee of the KMT or the Central Committee of the All Members Congress. In the end, no decisive conclusion was reached by the second session of the National Assembly in April 1992, so the issue was postponed.
Apart from this controversy over the election method, another important reform was initiated with respect to the position of the National Assembly. The original constitution endowed the National Assembly with roughly two main roles: the election of the President and constitutional revision. The National Assembly, however, risked losing its original purpose in the event the President becomes directly elected and, as in many other countries, the legislature assumes responsibility to initiate constitutional reform. Cognizant of this fact, Assembly Members sought to preserve their position and privileges in the subsequent negotiations for constitutional revision. As a result, it became necessary for the KMT to compromise with or conceded to KMT Members in the National Assembly in order to ensure the smooth progress of constitutional reform.
The National Assembly was granted the new right of approval over the personnel nominated to the Judiciary, the Examinatory Branch, and the Control Branch. The part of the constitution that stipulated that the Judiciary's Director, Vice-Director, and Chief Justice were to be "appointed by the President after approval by the Control Branch" was changed to "approval by the National Assembly". The approval system for the Director, Vice-Director, and Members of the Examinatory Branch too switched from Control Branch approval to approval by the National Assembly. Instead, the Control Branch lost the right to approve such personnel matters.
In addition, the Control Branch was no longer an apparatus for the representation of public opinion as set out in the original constitution. The members of the Control Body, according to the original constitution, were to be elected by local councils, but was later revised so that members were to be appointed by the President and approved by the National Assembly. The Control Branch's responsibilities were transformed so that it was less responsible as one of the five-branches of government and acted more as a semi-judicial body. Moreover, with the opening of session, the National Assembly would receive the President's National Address, discuss national policy, and make proposals. More than this, the National Assembly would have to have at least one session per year, a move to make it a permanent body, contrary to the wishes of President Lee.
Another major reform was with respect to the organization for regional administration. Article 17 of the revised constitution sought to constitutionalize the newly developing regional administrative organization in Taiwan and stipulated that the Governor of the Provincial Government of Taiwan would be elected by popular vote. This, however, was an overly hasty decision in consideration of the fact that the administrative responsibilities of both the central and provincial governments overlapped, and the popular election of both the President and the Governor would invite a future political contest for jurisdiction.
With the advancement of Taiwanization, the next task will be to tackle the question of how to handle the Provincial Government of Taiwan and how to reorganize government structure to avoid duplication of administration. As the popular election of the Provincial Governor preceded this step, however, the following reforms of the Provincial Government would result in the outbreak of considerable tension.
5. The Third Revision (1994)
The most important feature of the third constitutional revision, passed in August 1994 during the fourth special session of the second term of the National Assembly, was the provision for the direct election of the President. It was decided to adopt a procedure whereby the President would be elected by a relative majority of votes cast directly by the Taiwanese electorate. Despite certain calls by the `Greater China` advocates to permit Chinese living abroad to participate in the elections, the realists won out and only those with Taiwanese citizenship were permitted to participate if they returned to Taiwan.
Whether to adapt a relative majority or an absolute majority is the matter that will influence the future developments of the Taiwanese constitutional system. If an absolute majority system is adopted, run-off elections will become necessary, as in the French Presidential elections, and since more than half of the votes must be secured the new administration would be founded on majority public support. If a relative majority system is employed, the drastic change of political power may be more easily accomplished. But in increasingly pluralized Taiwan it will also be possible for a minority President to be elected on the basis of a mere thirty percent of votes. In Korean Presidential elections, which have adopted the same relative majority system, we can see election campaigning trends are heading toward the consolidation of minority-votes, and the stimulation of regionalized voter identity. The problem of whether to employ a relative or absolute majority system will no doubt surface in future constitutional reforms.
The anti-Lee faction in the KMT and the right wing New Party accused President Lee of instituting the direct election system in order to establish his own dictatorship, but the movement toward direct elections was somewhat inevitable. If an indirect system was adopted over the direct, there would have been no way to secure the opinion of the Taiwanese people. In the first place, there was a considerable difference between the situation of Mainland China when the ROC Constitution adopted the indirect system and the current situation in Taiwan where the direct election procedure was used.
The general population of Mainland China at that time was around 450 million while the electorate was estimated to be at least 260 million people. Moreover, the national territory was enormous, local registration and censuses were not completed, and communication and transportation networks were not yet adequately established: all of which served as real, physical barriers to carrying out direct elections effectively. Furthermore, more than eighty percent of the population was illiterate and did not have a basic understanding of democracy, the rule of law, or either the purpose or method of voting. The objective conditions requisite to conduct direct elections did not yet exist.
Forty-eight years later in the ROC in Taiwan, the territory is relatively small, the population is only 22 million with 13.5 million eligible voters, while over 96 percent of the population has completed compulsory education. Not only has communication networks but election engineering too is now well developed. The population's level of knowledge, ability to analyze and judge politics and to observe candidates has reached the standards of the democratic world. For some forty years or so, the Taiwanese have had the experience of local elections and have become accustomed to the electoral process. If the Constitution had adopted a cabinet system, we wouldn't say that the indirect election process for the head of state was undemocratic. The President, however, had been acting as the supreme power, so the Taiwanese people would not have accepted this reasoning.
International attention focused on presidential elections in those countries such as Korea, Russia, Eastern European countries, and South Africa, who had followed the path of democratization and championed the liberalizing measures of the new administrations. This factor also served as an impulse for the Lee Teng-hui administration. Taiwan had already instituted a free-election system from the town- and village-mayor level to National Assembly members and the heads of local governments. Also those laws that restricted basic human rights were already repealed or revised. Thus, the direct election of the President was regarded as the last stage of democratization.
Apart from the issue of presidential elections, the third revision also eliminated the process by which the Prime Minister must sign for presidential appointments approved by the Legislature. Presidential appointments still required Legislative ratification, so the abolishment of the Prime Minister's signature did not have a significant impact on power relations. It can be said, however, this move is a pre-emptive measure should relations between the President and Prime Minister become increasingly difficult, and the aforementioned revision will serve as a step in strengthening the Presidential system. It was also decided that members of the National Assembly would elect their own chairman and vice-chairman, which could be seen as another step to make the National Assembly a permanent body.
6. The Fourth Revision (1997)
After the third revision, elections were held for the Governor of the Provincial Government of Taiwan and the Mayoralties of Taipei and Kaoshiung in December 1994. The opposition party's candidate, Chen Shui-bian of the Democratic Progressive Party (DPP), managed to win the Mayoralty of Taipei. The Legislature election was held one year later wherein the KMT was reduced to barely a majority of three seats. In March 1996, the first direct presidential elections were held and Lee Teng-hui, with the aid of being the incumbent candidate, won. At the same time, National Assembly elections were conducted and the number of KMT candidates returned declined considerably. The KMT's representation fell from 239 to 183 seats, while the DPP's rose from 56 to 99 seats, and the New Party increased from 3 to 46 seats.
Taiwan has now entered an era wherein the government may have to grapple with an official or unofficial alliance and may be toppled or empowered by election results. Some of the weak points of the ROC Constitution have become apparent with the development of party politics. This was Taiwan's first experience with the development of modern party politics. Thus, an eye had to be kept on the direction in which party politics were moving while also considering the necessary political rules. The `game` had already started and it became necessary to conduct the difficult task of revising the rulebook while watching its progress.
Although the KMT managed to achieve a majority in the National Assembly, it was less than the required three-quarters needed to revise the constitution: it became impossible for the KMT to revise the constitution alone. Thus, the Lee Teng-hui administration planned to hold a National Development Conference in order to develop a consensus on constitutional revision. This was the same tactic adopted when the National Policy Conference was held during the first part of the Lee Administration, which also provided him with the momentum to carry out reforms. The National Development Conference, much like the National Policy Conference, was conducted as an extra-constitutional forum. Su Yong-qin argues that democratization had already been completed so there was no need to have another extra-constitutional conference. The reason that the Lee Administration chose, however, to hold such a conference was that the current institutional framework made it difficult for consultation to achieve results. Lin Shui-bo points out that the state apparatus, in a sense, malfunctioned.
Between December 23-28, 1996, the National Development Conference was held at the President's offices and was attended by the representatives of three political parties, business, bureaucratic and academic circles to a total of 170 people. While attendance largely depended upon party nominations, the list was extended to include representatives irrespective of party affiliation. The agenda for the conference was divided into three themes: `Constitutional system and party politics`, `Cross-straight relations`, and `Economic development`. The Conference was organized according to subcommittees and a general assembly, and the President's office encouraged genuine debate and not the mere expression of a party line.
The Conference resulted in 192 points of consensus. The Chairman, Huang Kun-hui, explained that these points had no legal power but could serve as a political pact. It can be said that the National Development Conference established the basis by which political parties would mutually discuss the important national issues of Taiwan. The Conference was not just a predatory meeting for next constitutional revision, but also served as an effort to re-adjust the political-economic system of Taiwan to accord with the domestic transition from an authoritarian to a democratic system and the international shift from a Cold War world to a post-Cold War world.
Xiao Quan-zheng summarizes the background of the National Development Conference as following. The end of the Cold War presents Taiwan new chances and potential problems. The practical political-economic trends of the post-Cold War era may help Taiwan out of isolation and strengthen its external relations. On the other hand, the post-Cold War era has also entailed greater intra-national economic competition while regionalism has also surfaced. Since Taiwan is removed from international society and organizations, the cost and risk of developing external trade relations has increased. There was also somewhat of a shake-up of Taiwan's economic situation with the switch from an authoritarian regime, the uncertain direction of policy, and bureaucratic inefficiency. These factors had a negative influence on Taiwan's economic competitiveness and led Taiwan into somewhat dire straights.
Furthermore, Taiwan had to confront the issue of managing cross-straight relations. As a result of the delicate `one-China` policy, democratization in Taiwan also brought about a difficult national identity crisis and antagonism between native Taiwanese and mainlanders. Moreover, this situation also raised China's suspicions that hindered Taiwan's efforts to return to the international society, which also had a negative influence on national competitiveness. The trend of domestic political democratization completely changed the past authoritarian political-economic system, but important reform is still needed in the constitutional system, legal system, government organization, civic identity, and education. The interplay among the three factors of democratization, post-Cold War trends, and cross-straight tensions created political and economic hardship for Taiwan, which made it difficult for Taiwan to carry out complete reforms. The National Development Conference was a leverage for the Lee Administration's to face and overcome these hardships.
The Conference focused on relations among the President, the Prime Minister, and the Legislature as a well as the handling of the Provincial Government of Taiwan. As indicated previously, democratization entailed the installation of a direct election system for the President and the Governor of Taiwan. The Lee Administration, however, was now required to tackle the serious questions that the original ROC Constitution could not solve with regard to the relationship between the President and the Legislature, and the relations between the Central Government and the Provincial Government of Taiwan.
6-a A Presidential or Cabinet System?
The KMT only had a three-seat majority after the 1995 Legislative elections. Their situation was essentially the same as a minority government when one considers the tendency of some KMT legislators to be absent from legislative sessions. President Lee wished to appoint a new Prime Minister but was unsure of whether legislative approval could be secured or not because of this weakened position. Thus, President Lee requested Lian Zhang to continue with his position as Prime Minister even after he was elected as Vice-President. In protest of this action, opposition members boycotted the subsequent discussion, continuing the general confusion within the Legislature. The constitutional provisions risked creating a deadlock between the legislative and executive branches in the event that the majority party in the Parliament was different from the President's party. Thus, the KMT proposed the constitutional concept of the `dual head` system for both the Prime Minister and President which entailed the elimination of the legislature's right to authorize the President's nomination for Prime Minister. The KMT expected the 'dual head' system would work with this alteration.
In the National Assembly debate that followed, the mainstream of both the KMT and the DPP agreed to support the `dual head` system. A faction of the DPP, however, favored a presidential system while the New Party and an anti-Lee faction within the KMT supported a cabinet system. Thus, the debate fell into disorder. There were many who felt that the decision to abolish the legislator's right to approve nominations would expand presidential powers. Those who supported the Cabinet system, namely the New Party, the anti-Lee faction of the KMT, some scholars, and some major newspaper syndicates such as the China Times, launched a campaign against President Lee, accusing him of seeking dictatorial powers.
During this session, the KMT and the DPP consulted many times over the details in order to reach agreement. This was the first such consultation between the ruling KMT and an opposition party in Taiwan's history. Eventually, the parties agreed to enact the following provisions:
* The President will appoint the Prime Minister. Legislature's authorization is not required.
* The Legislature can issue a vote of no-confidence against the Prime Minister if more than one-half of the total-member vote is achieved.
* If the no-confidence vote is carried against the Prime Minister, the President can dissolve the Legislature.
A further amendment concerned with the right of veto was issued. The two-thirds legislative majority required to send bills back to the Executive was reduced to one-half. Accordingly, the power relationship between the Executive and the Legislative branch will eventually change.
As pointed out earlier, the ROC Constitution established the Executive (President and Prime Minister) in a supreme position while the Legislature did not have any effective means to check the executive apart from the approval of presidential appointments. Some argue that the denial of this approval process, in effect, strengthens and broadens presidential authority. On the other hand, the fourth revision will increase the importance of the Legislature and give it appropriate power to be equal to that of a parliamentary-cabinet system. Thus, the change strengthened the elements of both the Cabinet and presidential systems at the same time. The deal was stuck, as a result of the KMT's desire to maintain control of the Executive body and the DPP's ambition to increase its number of seats in the Legislature.
This deal can also be regarded as an effort by both parties to construct new rules in the political game in response to the advent of party politics. The KMT sought to eliminate the approval system not only of its own self-interest in not releasing its grip on the reigns of the Executive, but also since they realized the weakness of this approval system to check the Executive. Through an examination of the examples of French and Korean Cabinet-Presidential relations, we can theoretically see the problem inherent in the original ROC Constitution.
According to the French Constitution, the President can appoint the Prime Minister without any authorization process from the Parliament. In South Korea, however, the Legislature holds the power of approval while the President does not have the right to dissolve Parliament, so it has a rather similar construction as the ROC Constitution. In 1998, the newly elected President Kim Dae Jung attempted to appoint a new Prime Minister but was unable to secure the Legislature's consent. The Korean constitution's process of approval is designed as a mechanism to check the power of the President, but while this may be considered a democratic check-and-balance function, it is not necessarily an effective one. The check is needed most when a single party dominates both the Legislature and Executive, but the approval process is ineffective at such times. On the other hand, when the electorate exercises a protest vote against the ruling party in support of the opposition, the approval process has a high likelihood to stir political crisis.
During the Presidential campaign, Kim Dae Jung issued a campaign promise to nominate Kim Jon Pil as Prime Minister, but after the election the majority party in the Legislature, which had lost the presidential election, intentionally hindered the start of the new Kim administration. However, the majority party, Hannara, was simply exercising its constitutional right. As a result there was considerable back-stage negotiations and irresolution resulting from face-saving measures, and the will of the electorate to create an impetus for political reform was halted in its tracks. In the Korean case, there is another possibility that the next Legislative election that will be held during President Kim's term may again result in political confusion and a power vacuum if no party can secure an absolute majority. Even though the rules of the game are democratic, they may create political distrust among the electorate if they are inapplicable to actual politics.
This kind of situation would not happen in France's presidential system due to the President's ability to dissolve Parliament. In 1981, the presidential election resulted in the reversal of the opposition and governing parties, so the new President, Mitterand, dissolved Parliament so as to allow for the new public opinion to be reflected in the number of seats in the Parliament. On the other hand, there was also a possibility that the President's party may lose the parliamentary elections that are required at least once during the President's term. While the French Parliament does not have the right to approve the Presidential nominee for Prime Minister, it can issue a vote of no-confidence against the cabinet with more than one-half of the members` vote. Therefore, the President must appoint a person whom he feels a majority of the Parliament will support. This is what is meant by `co-habitation`. In this case, the political reality will reflect the will of the electorate who desires change. Thus we can say that rules that give priority to the most recently tested will of the people are necessary to avoid unnecessary political deadlock. The most recent election results, whether it is for the Legislature or President, should be considered as indicative of popular political opinion and respected as such in the rulebook of the political game.
One method to resolve this issue, and leave the Legislature's right of approval in tact, is to hold presidential and legislative elections at the same time and make the terms the same duration. Here again, since the electoral systems are naturally different, there is a possibility that election results may be split when the power of the government and the opposition are evenly matched. If such an indecisive result occurs, a political deadlock may ensue.
The system for elections is also an important consideration. France adopted a single-seat constituency system but the candidate needs to secure an absolute majority to win. This system ensures rather clear results in parliamentary elections and the appointment of the Prime Minister is much more straightforward. Taiwan adopted a system whereby a single constituency could elect from one to twelve members with a mixture of single-seat, medium and large constituencies. With Taiwan's tendency for multiparty politics this may lead to uncertain results with no clear majority and to difficulty with coalition building. Parties may be reluctant to compromise on the platforms they advocated in recently concluded elections. In a situation like this, the fact that the Legislature's only check on presidential power is the approval of the President's nominee may have negative effects on the political procedure.
It can be said that the fourth constitutional revision shifted Taiwan away from a Korean- to a French-styled system, and consequently should not encounter the kind of difficulties mentioned above. In the case that an opposition party candidate was elected as President, the new President can appoint a new Prime Minister. If the new Prime Minister is given a vote of no-confidence by the Legislature, the President may dissolve the Legislature. Therefore instead of political wrangling that may lead nowhere, the electorate can use the ballot box to judge whether the political process of the new appointment of the Prime Minister is right or not. While the elimination of legislative approval for appointments for Prime Minister may strengthen discretionary presidential power, the Legislature can issue a vote of no-confidence if the President appoints someone whom the absolute majority of the Legislature would not support. Thus, the President must consider the situation and atmosphere of the Legislature.
The merit in eliminating the approval system would be that new administrations would not be stalled from the start. New administrations could start anyway and they could consult with other parties on each individual policy. By passing through this process new coalition governments or new political alliance could be formed. Thus, the elimination of parliamentary approval and in its place the adoption of an effective constitutional provision permitting a vote of no-confidence and dissolution of the Legislature will have a more positive, stabilizing effect on the future course of Taiwanese politics. This may result, however, in intensifying the tensions between the Executive and the Legislative branches. Whether such intensification may be used to good advantage, however, will depend upon the abilities of each political party.
6-b The Suspension of the Provincial Government of Taiwan
Another issue fiercely debated during the fourth revision related to the suspension of the Provincial Government of Taiwan, largely as a result of the performance of Governor Song. A marathon session was held between the DDP and the KMT with a high likelihood of a deadlock. President Lee, however, exercised leadership, issued guidelines to his negotiating team, and personally tried to persuade opposing or cautious members to finally reach an agreement to enact the following provisions:
* "Taiwan province shall have a provincial government and a provincial advisory council; the members of the provincial government, one of whom shall be the provincial governor, shall be nominated by the Prime Minister and appointed by the President of the Republic," Article 9, paragraph. 1;
* "Taiwan province shall have an advisory council; the members of the council, one of whom shall be the provincial governor, shall be nominated by the Prime Minister and appointed by the President, "Article 9, paragraph. 2.
Thus, it was decided that both the Provincial Government of Taiwan and the provincial assembly of Taiwan would be phased out as of December 20, 1998. This has been dubbed the 'simplification of the Taiwan province'.
The actual plan to simplify the Provincial Government of Taiwan is still in progress and the number of people concerned include 27,946 officials of the provincial government, 75,614 people in provincially-run corporations, 20,489 people in provincial schools, totaling 124,049 people. Among them, provincial schools will be placed under national or prefectural administration. Provincially run public corporations will be re-organized and eventually privatized. Thus, attention will be placed on the remaining 28,946 in the provincial government. Jiang Da-shu points out that the role of 5,400 officials in Zhong-xing-xin-cun, where the head office of the provincial government is located, is largely to intermediate between the central and the prefectural governments by transmitting messages, and of no particular importance. The Provincial Government of Taiwan is a legacy of the KMT's `Greater China` structure of the previous era. However, it has become an organization that has incorporated and consolidated local interests. The fact that the Lee administration chose to tackle the problem of this large-sized organization that has lots of existing interests by the appropriate method of constitutional reform is of considerable importance.
There are some who believe that the suspension of the Provincial Government is connected to a post-Lee succession struggle within the KMT. While this aspect came into play somewhat, the official reason for this reform - the rationalization of the political institutions of Taiwan -- is not merely lip service nor a cover for a deeper power struggle. One of the greatest challenges after the completion of democratization is how to make democracy work. To this end, the Lee administration has established the target of promoting national administrative efficiency.
The fact that it managed to progress through constitutional reform shows that the competence of the Taiwanese state can be held in high regard. Administrative reform in Taiwan provides a sharp contrast to the situation in Japan where much talk and little action have been made for years. Stephan Haggard argues that Taiwan's governing competence led to economic growth during the authoritarian period. Now Taiwan is seeking both a democratic system and efficient administrative governance. Whether Taiwan can proceed with such large-scale constitutional revision or not will be the ultimate test of its political-economic system after democratization.
The four constitutional revisions have established the legitimacy of "the ROC in Taiwan" and made clear the areas of national sovereignty. The previous seven-branch system has nearly been entirely reorganized with a similar form as the three-branch system of western democracies. Rules of the political-party game were also established to an adequate extent. While the four revisions took the shape of the Additional Articles, located at the end of the original text, their importance is in fact tantamount to a new constitution. On the other hand, remaining issues such as the National Assembly and referendums have yet to be resolved.
The challenge after democratization is to improve the quality of democracy. Moreover, a detailed legal framework is needed to deal with criminal-links and corruption within the Taiwanese political system so as to restore electorate confidence. With respect to party politics, the one-party system once dominated by the KMT has moved to a competitive multi-party system. The 1997 local elections witnessed the KMT's first defeat to the DPP, a historic event for the opposition, although the KMT recovered confidence in the Legislative election in December 1998. Political attention will be focused on the next presidential election in March 2000 to see whether there will be a democratic change of government. Whether the constitutional reforms will be able to cope with the unfolding events of Taiwanese politics depends upon the flexibility of Taiwan's political framework.