Unilateral Constitutional Revision Equals Partisan Political Struggle

Unilateral Constitutional Revision Equals Partisan Political Struggle
China Times editorial (Taipei, Taiwan, ROC)
A Translation
June 9, 2014

Summary: With election season approaching, the DPP and its allies have put forth a variety of proposals for constitutional amendments. To be successful. any party that proposes a constitutional amendment must seek political consensus rather than political struggle. Yet the political parties that are determined to amend the constitution hold precisely the opposite view. That means any political party that proposes a constitutional amendment during election season is probably doing so out of malice. Any proposed constitutional amendment is likely to be stillborn. Proposing it will merely make trouble.

Full Text Below:

With election season approaching, the DPP and its allies have put forth a variety of proposals for constitutional amendments. Some with a stake in the elections, such as Chairperson Tsai Ing-wen, have proposed that legislative elections be changed from a Separated Two-Vote System to a Compensatory Two-Vote System, and the number of legislative seats be increased, Others advocate lowering the voting age. Those not directly involved in the elections, who are more concerned about constitutional ideals, advocate changing to the cabinet system.

First consider the cabinet system. This is by no means new. During the early years of the republic, Sun Yat-sen proposed a presidential system. By the time Song Jiaoren proposed a cabinet system, the debate had dragged on for some time, but without any resolution. Politicians who seek the presidency advocate the presidential system. Others, who value the separation of powers advocate the cabinet system. Those who seek to control of both the legislature and the cabinet, favor the cabinet system. By doing so, they hope to improve government efficiency and ensure party responsibility. We lack a democratic tradition, but are struggling to affirm our constitutional system. The presidential system and cabinet system each have their supporters. The two political forces are at loggerheads. Under these conditions, a semi-presidential system appears to be the most feasible compromise.

Emerging constitutional states usually adopt a semi-presidential system. Our constitutional path is no exception. As we move toward a cabinet system, the elected president must be reduced to a figurehead. Expending a huge effort to elect a figurehead president makes no sense. It inevitably raises questions. We lack a hereditary monarch. If not by means of elections, how will we choose a Head of State? Advocates of the cabinet system propose choosing a Head of State by means of public opinion. The cabinet system relies on the legislature to direct politics. The Legislative Yuan on today's Taiwan lacks public trust. Some advocate constitutional reform and the adoption of a cabinet system. But they must first ensure legislative reform. Otherwise, it will remain empty talk. Any discussion of Legislative Yuan reform will make it necessary to discuss other constitutional amendments.

The most baffling proposal for a constitutional amendment is increasing the number of legislators. It lacks any political justification. We will not mince words. The caliber of today's elected legislators is far from ideal. The number of qualified candidates is extremely limited. Considering how poorly they have performed, how can increasing their numbers improve the caliber of the Legislative Yuan? This is clearly contrary to common sense. This is clearly wishful thinking. When one considers who made this proposal, newly installed DPP Chairperson Tsai Ing-wen. it is even less persuasive. Years ago Mr. Lin Yi-hsiung held a hunger strike, successfully pressuring the ruling and opposition parties into passing his constitutional amendment to halve the number of legislators. Yet today the rationale is exactly the opposite. No one has offered a thoughtful solution. It is hard not to suspect partisan political calculations. No one appears interested in a constitutional amendment to ensure lasting peace and stability for Taiwan as a whole.

Another proposal for a constitutional amendment involves changing the Legislative Yuan electoral system, from the current Separated Two-Vote System to a German-style Compensatory Two-Vote System. The advantage is that the latter avoids large discrepancies between the political party votes and the number of seats obtained, which can raise questions about political fairness. The German Compensatory Two-Vote System is more complex. But it is more scientific and fair. The Compensatory Two-Vote System yields a result more representative of party constituency than the Separated Two-Vote System. A Separated Two-Vote System may alter the political parties' proportional representation by expelling a member from the party. With a Compensatory Two-Vote System, only the original district's political constituency can decide his or her fate. Among the several proposals for constitutional amendments, the Compensatory Two-Vote System has the greatest political justification.

Conisider the constitutional amendment lowering the voting age. This is controversial. Currently the age of majority is 20 years old. It is difficult to explain why some citizens have the right to vote and participate in political decision-making, yet are legally constrained in their civil and commercial activities. Some issues remain to be considered before amending the Civil Code pertaining to the age of majority.

The above is merely a discussion of the political legitimacy of some of the proposed constitutional amendments. Assuming constitutional process is followed, one must also consider political costs and political repercussions. The current constitutional threshold is very high. That means that if any constitutional issue is highly controversial, it simply will not pass. In terms of constitutional principles, a high degree of political consensus should be required for passage. Only then can one amend a nation's basic law according to constitutional procedures. This is entirely consistent with the ideals of deliberative democracy. As we can see, proposals to adopt the cabinet system and increase the number of legislators are not politically realistic, They would merely invite political turmoil. Calculating the political effects of lowering the voting age is not easy. It is not obvious who its supporters are. The likelihood it will meet the threshold is low. A constitutional amendment to adopt a Compensatory Two-Vote System is more worthy of consideration. But it will require support from both the blue and green parties to pass.

The above discussion shows what sort of understanding anyone on Taiwan involved in amending the constitution must have. To be successful. any party that proposes a constitutional amendment must seek political consensus rather than political struggle. Yet the political parties that are determined to amend the constitution hold precisely the opposite view. That means any political party that proposes a constitutional amendment during election season is probably doing so out of malice. Any proposed constitutional amendment is likely to be stillborn. Proposing it will merely make trouble.

片面主張修憲 只是政黨鬥爭
2014年06月09日 04:10
本報訊

隨著選舉季節接近，民進黨及其盟友提出各種修憲主張。與選舉相關者，如蔡英文主席提出國會選舉方式從並立制改採聯立制、增加立法委員席次，也有主張降低選舉年齡者，與選舉無直接關連而較具憲政理想性者，則是主張改採內閣制者。

先談內閣制的倡議絕不是新話題，民國初年孫中山主張總統制，宋教仁主張內閣制時即已開其端緒。政治人物有總統大位之想者，多主張建立總統制，乃強調權力分立制度的優點；思同時掌握國會與內閣權力者，則心儀內閣制，以提高政府效能並確立政黨責任政治。在無民主傳統而輸入憲政制度的國家，總統制與內閣制通常會各有擁戴。政治力量相持不下，最容易以雙首長制達成妥協。

新興憲政國家以採取雙首長制比例最高，我國憲政軌跡不外如是。我國如改採內閣制，就必須讓民選總統成為虛位元首，花費偌大工夫選個虛位總統的制度理性何在，不免引人質疑；沒有世襲的君主，又不使用民選的方式，要如何產生國家元首，提倡內閣制者必須提出主張並通過民意。內閣制依靠國會主導政治，以台灣今日立法院表現難邀民眾信任的程度，主張修憲採取內閣制者，必須同時提出有效改革立法院的方案，否則恐怕只是空談。談改革立法院，不免就要討論另外幾項修憲主張了。

最啟人疑竇而不具政治正當性的修憲倡議，恐怕就是增加立法委員人數的主張。我們且不以人廢言，以今日選舉產生的立法委員，普遍品質距離理想甚遠的情形而言，人數極其有限的菁英，尚且表現如此，認為增加人數就可以提高立法院的品質，不免有違常識，而且太過一廂情願。若再追問是誰作此提議，就更沒有說服力了。民進黨新任主席蔡英文要否定當年靠著林義雄先生絕食壯舉，迫使朝野接受、全民埋單的「國會減半」修憲，反其道而行的道理何在，聽不到深思熟慮的思考，很難不使人懷疑只是一黨為了當下的政治利害算計，而不是為了台灣長治久安的長期整體利益而修憲。

另外一項修憲主張，是改變立法院選舉制度，從現行政黨比例代表與區域代表並立制改為德國聯立制，其制度優點是避免政黨得票率與獲得的席次出現過大差異，引起政治公平的質疑。德式的聯立制雖然在制度設計上較為複雜，但是確實更為科學而且公平。同時因為要從區域產生同額的政黨比例代表，民意代表性也比並立制更高。如果並立制具有理由可由政黨開除黨籍而撤換政黨比例代表，聯立制則只能由原選區選民而非政黨決定其去留。在各項修憲提案中，聯立制修憲案的政治正當性其實比較明顯。

至於降低選舉年齡的修憲主張，其實也有爭議。目前成年年齡為20歲，很難解釋為何部分有投票權可以參與政治決策的公民，可以是民商事行為的限制行為能力人。而修改民法成年年齡，也還有一些要周延考慮的問題。

以上只是從各項修憲提議的內容討論其政治正當性，如果從修憲程序的可行而言，還必須討論其政治成本及政治效應的問題。現在修憲的門檻甚高，意謂任何具有高度爭議性的修憲議題，根本不具有可行性。從憲法原理言之，必須是贏得高度政治共識的題目，才能順利通過修憲程序載入根本大法，其實相當符合審議民主的理想。依此觀察，內閣制與增加立委名額的修憲提議，恐怕不切政治實際，強加推動徒增政治紛擾而已。降低選齡案的政治效應一方面不易計算，另一方面支持者並不明顯，通過門檻的機會恐也有限。較有討論價值的是聯立制國會議選舉的修憲案，但是必須得到包括藍綠兩黨在內各方的支持，才可能通過。

以上的討論，顯示了台灣今日從事修憲所應有的政治認識。那就是提出修憲案的政黨，必須努力尋求政治共識，而非進行政黨鬥爭，才有可能成功。這點似乎和今日政黨政治的實況完全相反，那就意味著，任何在選舉季節之中主張修憲的政黨，如果還是惡習不改，任何修憲的提議都會是徒勞無功，不過惹事生非而已！