On March 19, the Free China Review held a seminar on recent developments in ROC constitutional reform, hosted by Dr. Jiang Ping-Iun, editor-in-chief. The participants were Cheng Hsin-hsiung (鄭心雄), deputy secretary-general of the ruling KMT; Kang Ning-hsiang (康寧祥), a former DPP member of the Legislative Yuan and currently a member of the National Reunification Council (set up by the Office of the ROC President); and Lu Ya-li (呂亞力), a professor in the Department of Political Science, National Taiwan Universty. Excerpts follow
Jiang Ping-lun: An extraordinary session of the National Assembly called by President Lee Teng-hui to implement constitutional reform is now in process. Professor Lu, could you explain why this is happening?
Lu Ya-li: Problems have emerged during the forty-four years of constitutional democracy in the ROC. First, the relationship between the Legislative Yuan and the National Assembly has grown increasingly tense because the demarcation of powers between the two organs is not very clear. Second, the roles of president and premier are also not stated clearly enough. For example, it is not certain who should be the real decision maker in the daily running of the government. In the past, these problems were not considered serious, because the ruling party could act as the ultimate coordinator. But they are serious now because times have changed. Since the government intends to abolish the Temporary Provisions Effective During the Period of Communist Rebellion, the relationship between Taiwan and the mainland will inevitably become much more complicated.
Democratization is another key factor that has caused people to demand constitutional reform. As a first step, the senior parliamentarians elected in the first national elections held over forty years ago have been asked to retire. The retirement issue and public concern about constitutional reform became especially clear during the student demonstration at the Chiang Kai-shek Memorial in June 1990. [The students were in part protesting the attempt by some National Assembly members to exercise their powers of initiative and referendum and to steeply increase their allowances for attending meetings.]
Jiang Ping-lun - "The way the president is elected will affect the basic form of the governmental system."
The National Affairs Conference (NAC), called by the president and held from June 28 to July 4, 1990, was a direct result of the demonstration. The NAC participants came from all segments of society, and they reached several areas of general consensus, particularly on the need for constitutional reform. They suggested bringing an end to both the Period of National Mobilization for the Suppression of the Communist Rebellion and the Temporary Provisions Effective During the Period of Communist Rebellion, which were appended to the constitution beginning in 1949. They also suggested revising the constitution, and having an organization representing the will of the people undertake the revision. [The current National Assembly, made up overwhelmingly of senior parliamentarians frozen in office for forty-four years, was not considered appropriate for the task.]
After the NAC meetings, the ruling KMT set up a Planning Task Force for Constitutional Reform. Academics were also invited to offer their opinions. It was believed at the time that the government could communicate its decisions to other political parties and the public only after a consensus was reached within the ruling party.
One task force recommendation called for constitutional reform to be under taken by "one organ in two stages." According to Article 174 of the ROC Constitution, both the National Assembly and the Legislative Yuan may propose constitutional amendments, but only the National Assembly has the authority to approve an amendment. After the NAC concluded, many legislators expressed a strong interest in proposing amendments to the Constitution. They also made it known that the Legislative Yuan is the more appropriate organ to shoulder such a responsibility because, it contains more locally elected members than the National Assembly.
Lu Ya-li - increasing tension between the Legislative Yuan and the National Assembly because "the demarcation of powers between the two organs is not very clear."
But if the Legislative Yuan were entrusted with the responsibility of drawing up constitutional amendments, the ruling party would have to deal with strong objections from senior parliamentarians. Another cause for concern comes from the inefficiency of the Legislative Yuan itself. It has been bogged down by fierce political squabbles between the KMT and the opposition, and its effectiveness as a law-making body has been seriously affected. Therefore, the KMT does not want the Legislative Yuan to be responsible for constitutional reform.
Thus, the "one organ" means the National Assembly, which is the sole government organ authorized by the constitution to effect any amendments. But why is the reform to be undertaken in two stages? If it were done in one stage, the senior members of the National Assembly would become a decisive force in reformulating the constitution, and the public would be strongly against such an arrangement.
Thus, in the first stage, all the senior members and supplementary members [who were periodically elected in Taiwan] in the National Assembly will remain in their positions. Their mission is to abolish the Temporary Provisions, and make legitimate the elections for the Second National Assembly, which will be held at the end of 1991. [In a recent decision passed by the Grand Justices (equivalent to the U.S. Supreme Court), the rights of senior members to exercise their powers will be terminated before December 31,1991.]
In the second stage, the newly elected members of the National Assembly and the supplementary members whose six-year terms of office have not yet expired will be responsible for more substantive constitutional reform.
Jiang: Mr. Cheng, why didn't the KMT invite other political parties to help plan the constitutional reform?
Cheng Hsin-hsiung: There were special reasons for the KMT to set up the Planning Task Force within the party itself. The NAC was held as a result of social and political changes, and people had high expectations of its deliberations. People were particularly concerned about constitutional reform. The week after the NAC concluded, the KMT convened a meeting to consider the constitutional reform issue. During the meeting, it was argued that leaders from various political groups should form a committee and help with the task of carrying out the NAC resolution. But this idea was dropped because people worried that such an arrangement would be like an extension of the NAC, thereby making it very difficult to reach any concrete proposal. To be effective and practicable, the KMT had no choice but to establish its own task force and take on the whole responsibility.
But that doesn't mean we have betrayed democracy, because the Task Force only makes suggestions. It can draw up a framework for constitutional revision, but this mayor may not be passed in the National Assembly.
Kang Ning-hsiang - "The need for constitutional reform has existed since the National Government moved to Taiwan from the mainland in 1949."
Jiang: Mr. Kang, as a leading member of the main opposition party, do you have further comments on constitutional reform? How do DPP members view the ruling party's handling of this matter?
Kang Ning-hsiang: The need for constitutional reform has existed since the National Government moved to Taiwan from the mainland in 1949. Since that year, the actual territory governed by the ROC government has been Taiwan and the offshore islands of Kinmen and Matsu, and not including the mainland as indicated in the ROC Constitution, which became effective on December 25, 1947. To really implement democracy we must first define the territory actually under our jurisdiction, be cause we cannot implement democracy in mainland China.
After solving the problem of territorial jurisdiction, we should stick to certain principles of democracy. Foremost among these, we must periodically reelect public officials on the basis of universal suffrage.
Before the NAC, many people thought that if a consensus could be reached on issues such as the local and central government systems, parliamentary reform, and mainland China policy, then a study group on constitutional reform would be established with members recommended by all political parties. The study group would be given the task to draw up specific recommendations and, after public hearings, they would be put to a vote.
But to our surprise, a task force composed only of KMT members was set up by the ruling party and given the responsibility to gather suggestions. There have been strong objections to this arrangement from the DPP.
Jiang: Some people are strongly opposed to the KMT's recommended reform procedure of "one organ," the National Assembly, in "two stages," the First National Assembly and the Second National Assembly, because they believe the senior parliamentarians have no mandate from the people to act on any constitutional reform.
Cheng: Besides the National Assembly, only the Legislative Yuan, according to Article 174 of the current ROC Constitution, is entitled to propose a constitutional amendment. And even if a proposed amendment can be passed in the Legislative Yuan, it must be submitted to the National Assembly for final approval. A referendum by the whole people cannot be held because there is no referendum law. As a result, reform has to be done through the National Assembly.
Article 174 also says that amendments to the Constitution shall be made "by a resolution of three-fourths of the delegates present at a meeting ... " Therefore, some people question the possibility of success of any reform proposal if the KMT should fail to win three-fourths of the seats in the Second National Assembly. But I don't think the DPP members of the Second National Assembly, even if they capture more than one fourth of the seats, will all vote against constitutional reform if it benefits the whole country.
Why must the reform come in two stages? In our suggested framework, the term of office for the Second National Assembly is four years plus one month. There will be 327 seats, including 80 for national representatives [who will be at large members representing all of China], and 20 for overseas Chinese representatives [method of selection not yet decided].
The total number of representatives, and the process of their election to the second National Assembly, differ from the current stipulations of the constitution. Their election needs to be legitimate, so the extraordinary session of the First National Assembly was summoned by the President in March [according to the stipulation of the constitution] and met in April. That is stage one, which is also being called "procedural constitutional reform."
After the Second National Assembly is elected, they will undertake substantive constitutional reform. This will be stage two. Since neither the KMT nor the DPP can manipulate every member of the new Assembly, we don't know if the representatives will approve the suggested KMT framework.
Jiang: What are the major orientations of the KMT framework for constitutional reform?
Cheng: The revision will be made by appending articles to the constitution. These articles will remain effective between the termination of the Period of National Mobilization and the reunification of China. The president's authority to take emergency measures will continue after the termination of the Period of National Mobilization.
With regard to parliamentary reform, the National Assembly will continue as an organ, but there will be no payment for its members. The numbers of seats will also be reduced. In addition, the Taiwan provincial governor and the mayors of Taipei and Kaohsiung, which are municipalities directly under the central government, will be chosen by direct popular election [they are now appointed].
Jiang: One important question raised in the NAC concerns the way the president should be elected. Mr. Cheng, could you elaborate on this?
Cheng: The resolution reached in the NAC said that the president should be elected by the people, avoiding the word "direct." Why? The president will continue to be elected by the National Assembly. Since the Second National Assembly will include national representatives, the president will continue to represent all of China, not just Taiwan. Is such an approach contradictory to democracy? Of course not, because the National Assembly members themselves are elected directly by the people.
Jiang: The way the president is elected will affect the basic form of the governmental system, making it either a presidential or a parliamentary system. Professor Lu, what is the intention of the ruling party in this matter?
Lu: The ruling party still seems inclined to have the National Assembly responsible for electing the president. But it is not yet clear whether the old system, where the representatives are free to vote as they wish, will be kept intact, or if a system similar to the U. S. Electoral College will be adopted.
Kang: During the National Affairs Conference, the majority of the participants seemed inclined to choose direct presidential elections.
Lu: At the time of the NAC, one of the major reasons many people supported direct presidential elections was be cause of their strong aversion to the National Assembly. Moreover, they believed that electing a president in such a way meant democracy.
Jiang: Does this mean that after the constitutional reform we will have a presidential system?
Lu: I believe the probability is very high. Nevertheless, it is important that the president be held accountable to the parliament.
Kang: There are many reasons supporting direct presidential elections. For example, the National Assembly has performed very poorly over the past four decades. No wonder a lot of people do not want members of the Assembly to be responsible for presidential elections.
Second, up to the present, even though people can only vote for legislators and city and county magistrates but not for the provincial governor and the mayors of Taipei and Kaohsiung - people still have a great sense of participation and accomplishment. As a result, they have gradually developed a strong desire to elect the president directly.
Third, if we really intend to practice a parliamentary system, we must first promote party politics. Legislators must be able to make balanced choices between their own interests and those of the country. But the driving force for practicing party politics is not yet strong enough because the opposition DPP, our second largest party, has had serious financial difficulties in its four years of history. Under these circumstances, the public worries about our ability to follow a parliamentary system. •