Amend the Constitution. Do Not Destroy It.

Amend the Constitution. Do Not Destroy It.
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
December 9, 2014

Executive Summary: In 1997, the Republic of China Constitution was amended for the fourth time. This newspaper published a series of 58 articles entitled, "Amend the Constitution. Do Not Destroy It.” Today all manner of calls for constitutional amendments are being heard. Clearly the constitution has been undermined by the past seven constitutional amendments. Today we reiterate our long held position. "Amend the Constitution. Do Not Destroy It.”

Full Text Below:

In 1997, the Republic of China Constitution was amended for the fourth time. This newspaper published a series of 58 articles entitled, "Amend the Constitution. Do Not Destroy It.” Today all manner of calls for constitutional amendments are being heard. Clearly the constitution has been undermined by the past seven constitutional amendments. Today we reiterate our long held position. "Amend the Constitution. Do Not Destroy It.”

This newspaper originally advocated a cabinet system. Between 1991 and 2004, the Constitution was amended seven times. Those demanding the amendments claimed they were based on the French Fifth Republic’s “dual leadership system." This newspaper has consistently advocated four principles during these seven constitutional amendment processes. One. Presidents must be elected by an absolute majority. Two. Authority must correspond with responsibility. Three. The Legislative Yuan must retain the right to approve nominees for premier. Four. Depending on whether the president and premier belong to the same political party, executive power must automatically revert to the Premier. The above four principles are the four pillars of the French Fifth Republic’s system. The seven amendments to our constitution were touted as a replication of the French system. In fact, they destroyed these four pillars. This failed attempt at replication led to our current disaster.

These amendments created confusion in the institutional framework for authority and responsibility. The main reason was Taiwan's unique political character. The meaning of the constitution has long remained unclear. Who knows when it will be clarified? Space is limited. Therefore we will confine ourselves to only two of these unclear issues. One. National identity remains divided. Some support "one China, different interpretations." Others support "backdoor listing." Taiwan independence elements go so far as to say “Except for the electoral system, I do not recognize the constitution." As a result, the constitution gets no respect, and the constitutional amendment process becomes a political battleground. Two. Playing fast and loose with the constitution is a fundamental breach of the democratic process. Currently some advocate changing the "presidential system" to a "cabinet system." Note how the so-called "dual-leadership system" has morphed into a "presidential system" in the real world? This is a distortion of the political culture. Yet when the cabinet system is adopted, the green camp demands back room political deals and resorts to forcible occupations of the podium. This rides roughshod over the spirit of majority rule. Therefore what difference would it make if we adopted the cabinet system?

Therefore when calls for constitutional amendments are renewed, three things must be understood. One. What are the the pros and cons of the current system? What defects are buried in its structure? What scourges will the amendment process let loose? Two. What advantages if any, would a new Constitution offer? What disadvantages? We must not make things worse. Three. Seven constitutional amendment processes turned into power struggles. The current constitutional amendment process also shows signs of turning into a political struggle. For example, the KMT advocates the “dual leadership system." Some even advocate a cabinet system. The DPP originally advocated a cabinet system. Now it advocates a presidential system. Tsai Ing-wen would only touch on the issue of "mixed-member proportional representation, parallel voting." The past seven constitutional amendment processes have taught us a lesson. The constitutional amendment process is an opportunity for waging political struggles. The constitutional amendment process is not easy. It must not be undertaken lightly.

Consider first the pros and cons of the current system. Taiwan has been torn asunder by disagreements over cross-Strait relations and reunification vs. independence. Presidential elections have become defacto referenda. They have shown that a Taiwan First mindset has had a powerful impact on democracy and cross-Strait relations. This is precisely what a cabinet system finds difficult to cope with. Authority and responsibility remain unclear. As long as the President appoints a majority party legislative leader as premier, the result is likely to be executive power automatically reverting to the premier, and a "cabinet system style dual leadership system." Add to this calls to eliminate back room political deals and return to majority rule. Some even think the dual leadership system need not be eliminated. They think all that is needed is the amending of the constitution and improvements in its implementation.

Consider the political calculations behind the constitutional amendment process. The advantage of the cabinet system is its flexibility. The flipside is that political currents are changeable, and cabinets lack longevity. This is confirmed by the painful experience of Japan. Furthermore, in most cabinet systems the Premier is the Chief Executive, therefore also the head of state. Britain, Japan, Thailand, and the British Commonwealth all have hereditary monarchs as figureheads. Therefore they are more stable. If Taiwan wants a cabinet system, will it also have a president? How would such a system be established? Could a president legally and realistically be relegated to a figurehead? People on Taiwan remain divided on the question of national identity. Suppose the the president supports Taiwan independence while the cabinet opposes Taiwan independence? How will they rule? Taiwan has essentially adopted a presidential system. Changing the role of the president requires more than merely changing some constitutional provisions.

In particular, under the current constitution the executive power and the elected legislature are distinct from each other. This has become an important firewall against political corruption. Years of corruption cases have shown us that campaign contributions can easily be used to bribe Chief Executives. The cabinet system links elections, political contributions, administrative power, and political bribery. This could lead to intolerable violations of government ethics.

Some advocate increasing the number of legislators and  "mixed-member proportional representation. with parallel voting." Such calls are commonplace. But the political spectrum for elected representatives on Taiwan has long been indistinguishable from the political spectrum for public policy. Candidates invariably fall somewhere on the reunification vs. independence, blue vs. green political policy spectrum. The New Party was followed by the PFP. The TAIP was followed by the TSU, then by the Taiwan Citizen Union. Do these distinctions further constitutional interests or not? Furthermore, if the number of legislators is increased, voting district must be shrunk. if smaller voting districts elect legislators who become cabinet ministers, will these legislators become cabinet leaders, or obedient puppets?

Finally, we must clarify the relationship between the parties in this political struggle. Is the motive long-term stability and constitutional justice? Or are constitutional amendment processes merely opportunities to engage in political struggle? The nation has endured seven constitutional amendments in 13 years. Do we really need to relive the nightmare of constitutional amendments designed to destroy the constitution?

修憲，不可再毀憲！
【聯合報╱社論】
2014.12.09 02:54 am

一九九七年第四次修憲期間，本報發表《修憲，不可毀憲》系列社論五十八篇；如今，種種修憲主張又起，可見此部憲法確因過去七次修憲受到毀傷，而我們今天的看法仍是：「修憲，勿再毀憲！」

本報原本主張內閣制，唯一九九一年至二○○四年的七次修憲，宣稱是以法國第五共和「雙首長制」為範本，因此本報對七次修憲的一貫主張有四：一、總統選舉應採絕對多數制；二、權責相副；三、不宜取消立法院的閣揆同意權；四、視總統與閣揆是否同屬一個政黨，採行政權換軌制。以上四項，皆法國第五共和憲法的樑柱，而我國七次修憲宣稱仿襲法制，卻拆毀此四樑柱，遂致畫虎不成，貽禍至今。

憲政混亂至此，除了前述體制架構的錯亂以致中樞權責不明以外，主要又因台灣政治文化的特異，以致憲政久陷混濁，河清無日。篇幅所限，僅舉二端：一、國家認同呈撕裂狀態，有人「一中各表」，有人「借殼上市」，獨派甚至稱「除了選舉制度外，不承認這部憲法」，因此憲法的尊嚴無以確立，修憲亦成政治鬥爭的平台。二、憲政操作根本違反民主法則，今日有主張改「總統制」為「內閣制」者（「雙首長制」竟然在實際運作中變成了「總統制」，此即政治文化造成的變體），但若改行「內閣制」，卻仍採「政黨協商」及「霸占主席台」的運作，完全違反「多數主治」的精神，則改成內閣制又有何用？

因而，在修憲之議再起時，必須先弄清三件事：一、現制的利弊何在？架構形成的缺陷是什麼？操作引發的禍害又是什麼？二、新憲的必然優點是什麼？或然的缺點又是什麼？不要愈修愈糟糕。三、七次修憲淪為政治權力鬥爭的平台，這次修憲呼聲亦現鬥爭端倪。例如，國民黨主張「雙首長制」，如今有人改推「內閣制」；而民進黨原有「內閣制」的主張，今又改持「總統制」，蔡英文甚至只願碰「聯立制／並立制」的問題。鑑於過去七次修憲的教訓，倘未廓清「以修憲為政治鬥爭平台」的權謀思維，非徒修憲不易，更不可輕言修憲。

先略論現制的利弊何在。在統獨撕裂及兩岸關係成為國政主體的台灣，總統直選儼然已成某種形式的「全民公投」，這對凸顯台灣主體性、反映民主及平衡節制兩岸關係有重大效能，而這卻恰是內閣制難以匹比之處。至於中樞權責不明，只要由總統建立「任命國會多數為行政院長」的體制，即可能形成「行政權換軌制」及「傾內閣制的雙首長制」。再加上廢止「政黨協商」的操作，即可回復「多數主治」的原則。甚至有一種看法是，「雙首長制」其實未必要廢，只需藉修憲及端正操作加以改善。

再簡論修憲新制的利害。內閣制的優點在政府的去留較靈活，但從相對的角度看，即是政潮洶湧，內閣不長命，此從日本的痛苦經驗即可印證。再者，一般內閣制，閣揆為行政首長，因此仍設國家元首。英、日、泰及大英國協，皆以世襲君主為虛位元首，因此較為穩定。台灣若行內閣制，要不要另設總統？要如何設？總統在法制上及現實政治上有無可能完全「虛位」？且台灣畢竟在國家認同上尚處撕裂狀態，如果是「獨總統／非獨內閣」，如何左右共治？再者，台灣已然形成「總統制」的政治氛圍，則改變總統角色絕非只是改個憲法條文就能辦到的事。

尤其，現行憲法將行政權與經由選舉產生的立法院作出區隔，這對政治清廉成為重要的防火牆。從這些年來的貪腐案件可知，選舉時期的政治獻金關係，極易轉為對行政首長的賄賂行為，而內閣制若將「選舉／政治獻金／行政權／政治賄賂」連成一線，可能導致政府操守不堪聞問。

另有主張增加立委名額及重新斟酌「聯立制／並立制」者，皆不無見地。但台灣的民意代表光譜一向難用公共政策來區別，最後皆落在統獨藍綠的光譜上，如新黨後又有親民黨，又如建國黨後又有台聯再有公民組合，此種區分究竟是否符合憲政利益？再者，增加立委名額，即表示選區要再縮小；而若在愈來愈小的選區中選出立法委員，而要這些立委成為內閣制的閣員大臣，會不會令人不寒而慄？

最後，必須廓清各方主張修憲的政治鬥爭關係。如果不是真正為憲政正義的長治久安而修憲，而只是想藉修憲作為政治鬥爭的平台；國家曾因十三年七次修憲而創鉅痛深，難道還要重演「修憲以致再次毀憲」的噩夢？