Constitutional Amendment Requires Public Debate

Constitutional Amendment Requires Public Debate
United Daily News (Taipei, Taiwan, ROC)
A Translation
May 21, 2015

Executive Summary: The Legislative Yuan "constitutional amendment committee" is conducting a substantive review of constitutional amendment proposals. The committee will convene 10 times over three weeks to discuss nine proposed constitutional amendments. Tsai Ing-wen hurriedly declared that the constitutional amendments must be passed. She said the legislature must not allow itself to be "condemned by history." The blue camp immediately countered. Tsai Ing-wen now opposes the restoration of prime ministerial consent, it said. She has flip-flopped on this matter repeatedly. If the constitutional amendments fail to pass, she bears the greatest responsibility.

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The Legislative Yuan "constitutional amendment committee" is conducting a substantive review of constitutional amendment proposals. The committee will convene 10 times over three weeks to discuss nine proposed constitutional amendments. Tsai Ing-wen hurriedly declared that the constitutional amendments must be passed. She said the legislature must not allow itself to be "condemned by history." The blue camp immediately countered. Tsai Ing-wen now opposes the restoration of prime ministerial consent, it said. She has flip-flopped on this matter repeatedly. If the constitutional amendments fail to pass, she bears the greatest responsibility.

The constitutional issues are still unclear. Yet the ruling and opposition parties have already begun passing the buck to each other. It hard to be optimistic about the current constitutional amendment process for three reasons. One. The time alloted is insufficient. According to provisions, ruling and opposition legislators must reach an accord by June 16. Only then can a public referendum be held on January 16 concurrent with the presidential election. The legislature must resolve differences between the ruling and opposition parties in 20 short days. That is an impossible task. Constitutional amendments are major undertakings. How can we allow so little public debate?

Two. The constitutional amendment process has been reduced to a political tool. For both the ruling and opposition parties, the constitutional amendment process is all about 2016 campaign strategy. It reeks of political calculation. For example, the two major parties' positions overlap on some issues. These include lowering the voting age to 18 and lowering the threshold for non-constituency legislators. Both parties are determined to convey an image of openness and to avoid offending young voters. But the DPP advocates lowering the threshold for constitutional amendments, the abolition of the Examination Yuan and the Control Yuan. It hopes to undermine the foundations of the Republic of China and challenge the legitimacy of its five-power constitution. Naturally the KMT is not going to agree.

By contrast, the ruling and opposition parties and the general public support the restoration of prime ministerial consent. Just last year, Tsai Ing-wen demanded the restoration of of prime ministerial consent. But this year the DPP has performed a complete about face and is suddenly firmly opposed. The reason is obvious. Tsai Ing-wen thinks a change in ruling parties will take place in 2016. She will hold the reins of power. So why give the legislature the power to appoint the prime minister? As for the KMT, including this as part of a "constitutional package" gives it confidence. Ruling and opposition party constitutional amendment proposals may be prettified with high-minded rhetoric. But the selfish motivations are glaringly obvious.

Three. Limits to constitutional debate and debate venues. The constitutional amendment process was originally supposed to begin with public debate. That way constitutional amendments would have a broader base of popular support. The debate process would help the public reach a consensus. It would enable the public to understand the ins and outs of the constitutional amendment process and to establish their priorities. Earlier this year, Tsai Ing-wen proposed a "national affairs conference". This would have been a good venue. Unfortunately ruling and opposition party differences rendered it stillborn. As a result, the Legislative Yuan established a "Constitutional Amendment Committee" to continue the investigation of constitutional amendment issues.

Alas, the constitutional amendment process has hit a wall in the legislature. The legislature is reenacting ruling vs. opposition party political wrangling and under the table deal-making. The process is rushed. Open and full discussion is impossible. Even participation by experts, social groups, and activists is impossible. The most obvious example of this took place in 2004. Under pressure from Lin Yi-hsiung a ruling and opposition party "constitutional reform committee" in the Legislative Yuan unanimously adopted a resolution to reduce legislative seats by half, and to raise the threshold for constitutional amendments. Eleven years later, reducing the legislative seats by half is considered an irrational amendment passed under pressure from populism. It constituted a fatal decline in legislative professionalism. Back then the DPP demanded a higher threshold for constitutional amendments. Now it is demanding that a lower one. So whose fault is it? Current legislators will remain in office until January next year. They have achieved little over the past three years. During that time the legislature was even occupied by force. Now they are engaged in a bidding war to amendment the nation's basic laws. How can we not be concerned?

Consider previous constitutional amendments. To say that if a constitutional amendment fails to pass, then so and so will be "condemned by history" is nonsense. In fact, history tells us that constitutional amendments must be well thought out. They must not be ill-conceived or motivated by momentary whim. Those who view the constitutional amendment process as a chess game, are the real culprits who will be condemned by history. The current constitutional amendment proposals, with the exception of lowering the voting age to 18, all require careful thought.

This includes lowering the threshold for political parties non-constituency legislators to 3%. The blue and green camps may have reached a bipartisan consensus on the matter. But it should be evaluated from a long-term perspective. This might help the disenfranchised. But it could also result in increasingly fragmented political parties. Once small parties proliferate, political consensus will be more difficult. National governance will be more difficult. Take the Taiwan Solidarity Union for example. By virtue of its party vote it has three non-constituency seats. But when their legislators speak, they often utter nonsense. Some even suggested "recruiting black people as mercenaries" and raised alarms about the "People's Liberation Army occupying Kinmen with kitchen knives". Is this sort of small party diversification really what Taiwan needs?

That the legislative process is haphazard is bad enough. But to take a hatchet to such an important matter as the constitution is infinitely worse. We cannot afford to be this reckless.

修憲欠缺的不是協商，而是公共討論

2015-05-21聯合報

立法院「修憲委員會」進入修憲提案的實質審查，將在三週內召開十場委員會，討論九大修憲議題。蔡英文率先喊話，說修憲必須成功、不能失敗，要求立法院不要做「歷史的罪人」。藍營立即反擊，蔡英文堅決反對恢復「閣揆同意權」，言行反覆，若修憲破局她要負最大責任。

修憲八字尚無一撇，朝野即開始互推責任，可想而知，這次修憲結果難以樂觀。從客觀環境看，這次修憲不可能有太大成果，主要原因有三：第一，時程太過緊迫。依規定，立法院必須在六月十六日前將朝野修憲議案送出，才能趕得上明年一月十六日大選同步進行公民複決；但是，立法院要在短短廿多天中處理完朝野歧見，幾乎是不可能的任務。修憲的重大工程，豈容如此草草討論？

第二，修憲議題被工具化。朝野兩黨的修憲主張，幾乎都與二○一六選戰策略掛勾，因此充滿算計與心機。例如，兩黨目前有交集的主張，包括降低投票門檻到十八歲，以及降低不分區立委得票門檻，都是為了塑造開放形象，避免得罪年輕選民。但是，民進黨主張降低修憲門檻，以及廢除考、監兩院等，目的則在挑戰及動搖「中華民國」及「五權憲法」的基礎及正當性，自然不易取得國民黨的認同。

相對的，對於朝野及民間皆有廣泛共識的「閣揆同意權」，蔡英文去年才喊了要爭取恢復，今年民進黨卻變臉堅決反對；其原因可想而知，主要是蔡英文自認二○一六政黨輪替在望，屆時自己大權在握，何必將閣揆任命權讓給立法院。至於國民黨，抓住這個環節要求「包裹修憲」，似乎也就喊得理直氣壯。從這個角度看，朝野修憲無論說得多動聽，其私心也就昭然若揭了。

第三，修憲討論與參與場域的局限。本來，比較理想的修憲議案，應該是開放更多的社會討論與公民參與；那樣，修憲議題將具有更廣泛的民意基礎，同時也能藉討論的過程凝聚共識，並讓社會大眾了解修憲工程的來龍去脈及應該選擇的優先順序。蔡英文今年初稍早曾有召開「國是會議」之議，這原是一個不錯的場域，遺憾的是，此一提議在朝野歧見下流產；也因此，才轉而由立法院成立「修憲委員會」，以接續研擬修憲議題。

問題在，修憲議題一進入立法院的圍牆，即無異是在複製朝野的政治角力和密室協商，倉促而密集的會議，不僅難以達到開放、完整的討論，同時也隔絕了專家菁英、社會團體、乃至積極公民的參與機會。最明顯的例子是，二○○四年立法院在林義雄的靜坐施壓下，朝野在立法院「修憲委員會」一致通過「立委席次減半」的決議，同時提高了修憲的門檻。十一年後，立委席次減半被認為是一次民粹威脅下的非理性修憲，也是國會專業職能下降的致命傷；不僅如此，當時墊高的修憲門檻，民進黨今天又喊著要降低，請問：這是誰之過？更何況，本屆立委的任期至明年一月就要結束，他們過去三年多並無多少作為，其間還發生國會遭到占領的憾事，此刻若讓他們用「喊價」的方式來執行國家基本大法的修改，豈不可憂？

檢視歷次的修憲，若要說某個修憲提案不過，誰就是「歷史的罪人」云云，這種說法完全是毫無根據的指控。事實上，歷史經驗告訴我們，必須完整配套的憲政架構，若因思慮不周或一時突發奇想而胡亂更動，這種視憲法如棋局和草芥的玩弄者，才是真正的歷史罪人。以目前攤在桌上的修憲主張看，除了放寬投票年齡至十八歲一案，其餘皆有待審慎思考。

包括放寛政黨不分區席次門檻到三％一案，儘管藍綠兩黨在此議意見一致，其實仍有待從長計議。理由是，此舉固然照顧了零星選票的綜合代表性，卻可能造成政黨政治的愈發破碎化，一旦小黨林立，政治共識將更難凝聚，國家治理也將愈發困難。就以台聯為例，它憑藉政黨票分配到三個不分區席次，但審視其立委的發言，有時不僅言不及義，甚至常出現「找黑人當傭兵」、「解放軍拿菜刀占領金門」等荒誕質詢，這是台灣需要的多元化小黨嗎？

國會的立法工作離離落落也就罷了，要向憲法動刀這等大事，還是小心為上！