A Constitution’s Hollow Promise

On 26 November 2022, the Taiwanese people had their authentic constitutional voice heard for the first time in history by casting votes in a referendum on a constitutional amendment that would lower the age of voting from 20 to 18, and that of candidacy from 23 to 18 except as otherwise provided by the Constitution or legislation.  Given that Taiwan’s current Constitution was adopted by a Constituent National Assembly in China in 1946 when Japan still held sovereignty over Taiwan de jure and all the previous constitutional amendments were adopted without receiving direct approval from the Taiwanese people, the holding of referendum itself is historic.  Yet, this latest round of constitutional reform on Taiwan’s road towards an ever more democratic politics ends up as a damp squib: given the requirement of an absolute majority of the eligible voters in favour for a constitutional amendment to receive ratification by referendum, the referendum’s result—approximately 5.6 million (53%) votes cast in favour with the voter turnout at 59%—falls far short of the threshold (approximately 9.2 million votes), dealing a crushing blow to the long-awaited constitutional reform.

Without repeating what has been said about the lead-up to the single-issue constitutional amendment above (here and here), this contribution takes on two misconceptions characteristic of Taiwan’s frustrated constitutional reform: the conflation of legitimacy and consensus and the failure to distinguish between the decisional and the confirmational role of referendum in constitutional reform.  It is suggested that that the stalemate of Taiwan’s constitutional reform has its roots in Taiwan’s absent sovereignty, rendering hollow the constitutional promise to make the Taiwanese people sovereign by constitutional referendum.

Why Democratic Deliberation? Legitimacy or Consensus

To change the Constitution in Taiwan needs to clear two procedural hurdles placed therein.  Before a constitutional amendment is put to a referendum for ratification, it must pass the parliamentary stage with the support of at least three-fourths of the MPs present at a session attended by at least three-fourths of all MPs.  Also, at least six months must elapse between the parliamentary passage of a constitutional amendment and the constitutional referendum.  Considering these procedural requirements and the threshold for a constitutional amendment to receive ratification by referendum — more than one-half of the total number of the eligible electors in favour — it is not far-fetched to say that Taiwan has one of the strictest constitutional amendment procedures in the world.

The constitutional amendment procedure above was only adopted in 2005 when the National Assembly — a popularly elected, Supreme Soviet-like body that wielded extensive powers, including the amending power, under the original Constitution — was abolished.  The rationale behind the 2005 constitutional reform that installed the current strict amendment procedures was to democratize the process of anticipated further alteration of the Constitution.  Against the backdrop of referendum being considered a political taboo in Taiwan for its evocation of self-determination and popular sovereignty, installing referendum in the process of constitutional amendment in the 2005 constitutional reform was hailed as a momentous step towards bringing Taiwan’s Chinese Constitution closer to the Taiwanese people.  The procedural rigidity of high super majority in the parliamentary-popular double lock for a valid constitutional amendment was read in the light of deliberative democracy: the higher the threshold of majority is, the more deliberative the democratic process of constitutional debate will be and the closer a constitutional amendment can be to consensus.  In the same line, the required six-month interval was welcomed as a procedural facilitator for constitutional deliberation.

It is true that a constitution cannot function properly without society-wide support.  Efforts to make the democratic process of constitutional amendment more deliberative and consensual are thus praiseworthy.  Yet, we should not forget that constitutional ordering is essentially a political project.  Consensus may well engender legitimacy, but the legitimacy of the political project of constitutional ordering does not necessarily depend on consensus.  When consensus is elevated as the criterion of legitimate constitution reform, it may instead disserve democracy by allowing intransigent forces a veto on any constitutional amendment.

In this light, to blame Taiwan’s stalled constitutional reform on the lack of deliberation seems to bark up the wrong tree.  It is one thing to say how the current design of deliberative democracy in the process of constitutional amendment can be improved; it is another to say that the frustration of the constitutional amendment in the referendum on 26 November is due to the absence of deliberation and the lack of consensus.  After all, the amendment to lower the age of voting and that of candidacy was long in the making and passed without objection in the parliament (Legislative Yuan) — with 109 ‘yeas’ out of the total 113 MPs and three absent, apart from the non-voting Speaker.  In the lead-up to this constitutional amendment and the referendum, deliberation was not lacking.  Instead, it is the procedural strictness of Taiwan’s ill-designed amendment process, especially the super majority required for the ratification of constitutional amendment by referendum, that frustrated the reform to extend suffrage.  Dwelling on deliberation without taking on the flawed design regarding constitutional amendment suggests that the political character of the constitutional project gets lost in the conflation of legitimacy and consensus.

Why Constitutional Referendum? Decision or Confirmation

The fixation with deliberation also suggests another misconception about the role of referendum in constitutional reform in Taiwan.  As democracy stands as the global standard of legitimacy, more and more countries now see referendum as the ultimate test for credible constitutional changes.  Taiwan is among the rest.  After all, the people—or rather citizens—decide their common political future as envisaged in the proposed master-text constitution through referenda.  Seen in this light, citizens are decision-makers and referenda are decisional in nature: any proposed constitutional amendment or a new constitution is to be decided de novo in a referendum, regardless of its procedural pedigree.  Thus, a duly-deliberated constitutional reform proposal that results from a cross-sectoral representative body and an amendment rushed through the parliament are equally subject to the people’s independent decision in a referendum.  For the latter, the referendum should be decisional as a popular check on the powers that be.  Yet, when a constitutional reform proposal put to a referendum reflects the negotiated result that speaks to social consensus, is the referendum nonetheless expected to decide on the reform project de novo?  Or, is it rather expected to lend legitimacy to the consensus-based reform proposal?  Thus viewed, the referendum on a long-awaited constitutional reform proposal that commands cross-sectoral support seems to be more confirmational than decisional.

Failing to distinguish between the two roles of constitutional referendum results in the persistent focus on deliberation in the post-mortem of Taiwan’s stalled constitutional reform above.  As noted above, the reform itself was not controversial.  Yet, just because it was not controversial and focused on a single issue, parties’ incentives to mobilize their political bases were wanting, while political forces in civil society found it hard to get out the vote.  To increase the voter turnout to cross the high procedural hurdle for constitutional amendment, the referendum was held on the election day for key municipal elections in Taiwan.  Yet, holding the constitutional referendum and the municipal elections in parallel paved the way for the single-issue constitutional reform becoming hostage to relentless political vitriol and obfuscatory campaign rhetoric.  The mandatory six-moth interval between the parliamentary passage of constitutional amendment and the referendum further complicates the underlying constitutional politics of which any reform cannot steer clear.  Insistence on how the Taiwanese people could have been better informed in playing their decisional role in the referendum reflects the misconception about the dual roles of referendum in constitutional reform.

The Hollow Hope: Neither the Constitution Nor the People Is Sovereign

As suggested above, underlying the double misconceptions in Taiwan’s attempted constitutional reform is the flawed design of constitutional amendment being left untouched.  Suggestions have been made as to how to open the parliamentary stage and the lead-up to the referendum to even more citizen participation.  Yet, neither the mandatory six-month interval nor the daunting absolute majority required for ratification of constitutional amendment in a referendum as sanctioned in the Constitution is seriously questioned.  As discussed above, the constitutional reform failing the threshold for amendment ratification did command broad support.  It was only stalled by the very design of constitutional amendment under Taiwan’s current Constitution.  Leaving the design out while insisting on other procedural fine-tunings is escapist, giving away a fundamental pathology of Taiwan’s constitutional order.

Taiwan’s current Constitution has its roots in China.  To the Taiwanese people, the original Constitution was far from the constitutional manifestation of popular sovereignty.  Instead, it was in essence an imposed constitution, which was foreign to them.  Installing constitutional referendum in the place of the National Assembly in 2005 seemed to bring sovereignty home with all its intimations of self-determination.  Yet, the high procedural hurdles accompanying the installation of constitutional referendum in the 2005 reform were adopted only to increase the odds against further changes to the Constitution.  In other words, the constitutional referendum symbolic of popular sovereignty has since kept the Taiwanese people from making their sovereign decision through altering the Constitution.

Under such circumstances, the Taiwanese people theoretically should be expected to restore their frustrated constitutional sovereignty and realize the needed reform through the exercise of their constituent power to give themselves a new constitution.  Yet, in the face of the existential threat from China, with only a few exceptions, the Taiwanese people seem to have accepted that their option for full expression of constitutional sovereignty by setting aside the flawed amendment procedures under Taiwan’s current Constitution has been forestalled.  As a result, Taiwan’s current Constitution endures and continues to be tainted with its foreign-born elements, while the Taiwanese people are constitutionally sovereign only in a nominal sense.  Culminating in the current stalemate of Taiwan’s constitutional order, the 2005 reform’s promise to make the Taiwanese people sovereign by constitutional referendum eventually rings hollow.  A constitution that frustrates the people’s sovereign choice and keeps sovereignty absent is the fundamental pathology of Taiwan’s constitutional status quo.