Taiwan’s Constitution has undergone seven amendments since it came into effect in 1947, each time reflecting as well bringing about significant political changes on the island-democracy. For example, the 1991 reform led to the first general election of the legislature and a formal as well as legal framework for cross-Strait relations. The 1994 reform achieved democratization by granting Taiwanese people the right to elect their president, and the current semi-presidential system was adopted in 1997. The 2005 reform abolished the antiquated National Assembly (國民大會), making the Legislative Yuan (LY, 立法院) a unicameral legislature. It also changed the electoral system from single-nontransferable vote (SNTV, 複數選區單記非讓渡投票制) to a parallel voting system, also known as the mixed member majoritarian (MMM, 並立制單一選區兩票制).
In September, President Tsai Ing-wen used the ruling-Democratic Progressive Party’s National Party Congress, of which she still serves as chairperson, to announce a new period of Constitutional reform. In her speech, Tsai mentioned three primary targets: improving the electoral system, enhancing the separation of powers, and adding human right clauses to the Constitution. She also called for a comprehensive review of the Fundamental National Policies (基本國策) and for the NPC to pass proposals with consensus, including lowering the voting age to 18. The DPP’s think tank—the New Frontier Foundation (新境界文教基金會)—is currently developing proposals in response to President Tsai’s charge. This article provides a preliminary assessment of those proposals.
Proposals on Agenda
First, lowering the minimum age for voting is, perhaps, the most straightforward bill on the agenda. It enjoyed bipartisan support in 2015, but failed to pass within the LY because it was bundled with other issues (especially the issue of absentee voting). As the preponderance of countries worldwide have a voting age set at 18 or younger, proponents of lowering the voting age argue that Taiwan should not maintain the highest voting age (20) among liberal democracies. However, opinion polls show a 50-50 stalemate, with those who disagree with the status quo possessing a slight advantage. Indeed, there is a consensus among mainstream parties and scholars that the voting age should be lowered, so this is unlikely to be a controversy in the discussions over reform.
Second, the human rights clauses have long been advocated by scholars and political activists (e.g. Taiwan Association for Human Rights) but so far there is no specific draft for legislative or public discussion. In general, many people urge that the Constitution adopt international standards of human rights protections (e.g. human rights instruments like the ICCPR, ICESCR, and CEDAW). The overall aim would be to promote social justice. Yet, there is no human rights institution or explicit rules currently on the agenda, so the realization of these progressive proposals may need more time to mature.
The most challenging issue by far on the agenda is the government type, which directly affects the issue of “enhancing separation of powers,” along with the electoral systems for selecting representatives. Theoretically, these two issues are highly correlated, because the electoral systems have direct effects on shaping the party systems, which influence the function of each form of government. Determining the optimal number of lawmakers is a relatively easy task, and is believed to be 200 to 300 (a number reached by taking into account the population of Taiwan and the experience of similar countries). Yet, the selection of the best systems to use for organizing the government and elections is much more complex and there is no consensus, even among political scientists.
Obstacle: Difficult Choices
As noted earlier, the current system of the Taiwan government is semi-presidential, and two primary rules shift the power balance in favor of the president. First, the president appoints the premier without approval from the legislature. And second, the president chairs the National Security Council (國家安全會議), which covers almost all aspects of governance, overriding the power of the premier, who is nominally head of the government. However, the president is not held responsible by the legislature, leading to frequent premier reshuffles. Both Ma Ying-jeou and Chen Shui-bian had six premiers during their respective eight-year terms. So far, the preferences of elites and politicians on the reform of government forms have been highly divergent. In short, a reform toward a purely presidential system may enhance the separation of powers, and thus provide more checks and balances, while a parliamentary system would mean a united (with legislative majority) government that is more responsive to public opinion.
As for the electoral system, President Tsai pointed out at the Party Congress that the current electoral system has led to unequal vote values and inequitable representation. An obvious direction of reform is the adoption of MMP, which would fill up seats for small parties from the party list. In fact, Tsai explicitly expressed her preference for this electoral system over the current MMM when she was re-elected DPP chairperson in 2014. However, MMP would reduce the seat bonus of the mainstream parties, making it more difficult for a single party to seize a majority in the legislature. Thus, we cannot expect politicians from mainstream parties to give up the advantages they enjoy under majority rule. When MMM was adopted in 2005, both the KMT and DPP supported the proposal while the small parties, TSU, NP, and PFP, all opposed the Reform. It significantly reduced the effective number of parties after the 2008 general election, from 3.26 in 2005 to under 2.00 in 2008, maintaining at about 2.23 to 2.17 after that. Consequently, it is not an easy task to persuade beneficiaries of the current system to adopt MMP.
Obstacle: The Threshold
The threshold for passing the Constitutional reform bill in the legislature is three-quarters of the majority among the presence of three-quarters of legislators. This gives the party or coalition in the majority great veto power. The last time there was a discussion of reform, in 2015, the 18-year-old suffrage age proposal could not pass the Constitutional reform committee in the LY because the KMT reportedly insisted on bundling it with absentee voting, which the DPP strongly opposed. Given the long-term distrust between the main parties, forming consensus between elites may be a fundamental requirement for the reform process to be effective.
Furthermore, the Constitution is a political institution that is conceptually vague and practically distant from ordinary people’s daily lives, so voters rarely pay attention to issues concerning it—yet with far reaching political consequences. For instance, in the 2005 National Assembly election, in which the representatives were selected to vote on the proposed Constitutional amendments, the turnout rate was only 23.4 percent. Yet, the amendments adopted through that election terminated the National Assembly and made Taiwan’s Constitution one of the most rigid in the world: the endorsement of 50 percent eligible voters—more than nine million—in a referendum is required to pass any amendment. Consider that the highest turnout rate among all of the elections in Taiwan occurs during the presidential election, which usually reaches about 70 percent (66.27 percent in 2016, 74.38 percent in 2012). Even in the most optimistic scenario, with a voter turnout for a referendum at 70 percent, passing a Constitutional amendment would require more than 71 percent of votes in favor to satisfy the half of eligible voter threshold required by law. Therefore, Constitutional reform requires not only consensus among mainstream parties but also their resources and capacity for mobilizing voters.
The difficulties ahead for Tsai’s Constitutional reform primarily come from the complexity of the proposals and the high threshold imposed by the Constitution. There is no “correct” answer to the question of which governing or electoral system is better, although there are apparent problems with the current system. The ruling party will need to coordinate with other parties, as well as with grassroots organizations such as the Taiwan Democracy Watch (台灣守護民主平台), Alliance of Civil Groups for Constitutional Reform (公民憲政推動聯盟), and the many social groups dedicated to political reforms. More discussions from both bottom-up and top-down approaches are needed to identify proposals that can be accepted by most of Taiwan’s citizens.
The main point: There are clear reasons that Constitution reforms are needed, especially those pertaining to the electoral system, forms of government, voting age, and enacting human rights protections. However, there is far from a consensus on the directions the reforms should take. Given the incredibly high threshold for enacting Constitutional amendments, the Tsai administration should do more to encourage discussions across parties, among elites, and with civil society.