US embassy cable - 05TAIPEI2321

UNCLAS SECTION 01 OF 03 TAIPEI 002321 
 
SIPDIS 
 
DEPARTMENT FOR INR/R/MR, EAP/RSP/TC, EAP/PA, EAP/PD - 
ROBERT PALLADINO 
DEPARTMENT PASS AIT/WASHINGTON 
 
E.O. 12958: N/A 
TAGS: OPRC, KMDR, KPAO, TW, Domestic Politics 
SUBJECT: COMMENTARY ON TAIWAN CONSTITUTIONAL REVISION 
 
In an article published by the centrist, pro-status quo 
China Times May 23, Professor Chu Yun-han of the 
National Taiwan University's Department of Political 
Science commented on the absurdity of Taiwan's 
constitutional reforms.  The following is a full-text 
translation. 
 
"Fantastic Story of Taiwan's Constitutional Reforms" 
 
"The processes of Taiwan's constitutional reforms have 
always been full of paradoxes, absurdity, and 
surprises.  One cannot help but sigh for the paradoxes. 
For example, the rules and thresholds governing the 
procedures to amend the Constitution look very rigid on 
the surface.  However, through manipulations by the 
political parties the negotiation, deliberation, and 
voting [for the amendments] have been terribly rough 
and rash.  Every time the revisions were beautified by 
slogans such as `realizing political powers of the 
people,' `deepening democratic reforms,' and `for long- 
term national security and stability.'  In fact, the 
actual results [of these revisions] were often damages 
made to the functioning of democratic governance by the 
constitutional rule.  And the power-and-responsibility 
relations between constitutional organizations became 
more blurred while the check-and-balance and the 
supervision mechanisms more fragmented.  The real 
problems regarding the power-and-responsibility 
imbalance that needed to be resolved by constitutional 
amendments were totally avoided because they did not 
meet the power-expanding demands of the top leadership. 
Issues, which obviously could be regulated by policies 
and laws, had to be upgraded to the constitutional 
level.  After a whole lot of fascinating statements 
were added to the Constitution, nobody cares about how 
to implement these at the policy and law levels. 
Seeing the absurd developments makes one too sad to 
cry.  For example, proposing constitutional amendments 
has long been the favorite political-reform `image 
engineering' pursued by political leaders.  They could 
always find alternative prescriptions to deal with 
trivial issues.  Then presented them as `critical 
reforms.'  These flashy `image engineering' projects 
ended without exception into constitutional `messes.' 
Almost every round of constitutional reforms would 
leave seeds for future constitutional disputes or 
governance crises.  A new round of revisions was often 
proposed to remedy mistakes and failures made during 
the last round.  Every time the Constitution was 
revised, its legitimacy and authority would be reduced. 
One does not know where this repetitive cycle will end. 
Can the seventh constitutional revision, which is soon 
to go through the procedure of ratification by the 
National Assembly (NA), escape this vicious cycle? 
 
"Two things are very bizarre with regard to the 
constitutional reform process this time: First, over 
the past ten years, the Legislative Yuan (LY) has been 
tying its hands and has never exercised its authority 
to amend [Taiwan's] Constitution.  But look at the 
masterpiece of its first effort in leading 
constitutional revision: it has passed a constitutional 
proposal with regard to congressional reforms, which 
will definitely seriously undermine the Legislative 
Yuan's role in representing the diversity of our 
society and undercut its legislative and supervisory 
functions.  Second, many political figures used to 
regard public participation in constitutional reform as 
the highest objective for democratic reforms, and as a 
result, they tried their best to promote the proposal 
of 'abolishing ad hoc National Assembly 
representatives' and replaced it with a 'public 
referendum on constitutional reform.'  They also tried 
to package the referendum as the main course of the set 
meal of constitutional reform this time and define the 
ad hoc National Assembly election as a 'substantive' 
referendum.  But in the end, the less than one fourth 
of the voter turnout rate showed that this 
constitutional reform lacks justification in a 
democratic sense and has formed a constitutional wound 
that is hard to mend. 
 
"Incredibly ridiculous images have appeared from the 
beginning till the end of the current constitutional 
revision process.  For one thing, this full-of-flaw 
amendment package was rashly adopted during an 
extraordinary LY session under the atmosphere of an 
election campaign and the pressure from a populist 
mobilization.  During the process, party leaders became 
wimps and lawmakers all thought they could get away 
with it and refused to take any political 
responsibility facing the solemn issue of 
constitutional reform.  Masterminds of the LY caucuses 
deliberately narrowed down the space for extensive 
consideration and rational debates.  Only a few 
hearings by academics and experts were casually held as 
a matter of form.  Even though an overwhelm majority of 
law and political science scholars raised questions 
about the improper reduction into half of LY seats and 
the unreasonable design of the Japanese-style two-vote 
system, nobody listened. 
 
"Second, the revision process is filled with political 
tricks played to fool the voters.  For example, the way 
of a forced tie-in sale is used this time.  Amendments 
that have no systematic relations whatsoever to each 
other, e.g. changes to the legislature election system 
and changes to the constitutional revision procedures, 
or the reduction of LY seats and the extension of LY 
members' term, were forcibly bound together.  These 
subjects should have been proposed, discussed and voted 
on as separate constitutional amendments.  Voters 
should have had opportunities to express their pro and 
con positions on each of the proposals during the 
ratification process.  Then members of the ad hoc 
National Assembly should make decisions on each 
amendment.  But now normal goods (e.g. extending 
lawmakers' term to four years) and flawed goods (e.g. 
Japanese two-vote system) and bad goods (reduction in 
half of LY seats) are sold in one package and cannot be 
returned or changed.  More ridiculous is that the 
rationality of the two-vote system simply had to be 
sacrificed in order to accommodate the populist appeal 
of `reducing [LY] seats in half'. 
 
"The worse tricks to fool the public are to use 
simultaneously two sets of entirely different and 
contradictory legal logic to formulate the ad hoc NA 
elections.  Then selectively apply the two sets of 
legal logic in order to create the largest space for 
maneuvers by the manipulators.  Whether the nature of 
the latest ad hoc NA elections was a selection of 
representatives to revise the Constitution or a 
substantive `referendum on constitutional amendments' 
had been dubious until before the balloting day.  On 
the one hand, the elections were dealt with according 
to standards for elected organizations.  Therefore, no 
threshold for the minimum turnout rate was set.  The 
election organizing agencies requested candidates to 
pay warranty deposits based on the Election and Recall 
Law.  The LY approved budgets and compensations to be 
paid for the one-month NA sessions accordingly.  On the 
other, the special ballots printed by these agencies 
following the National Assembly Members Election Law 
showed the `pro' and `con' positions of the political 
parties.  This can either be interpreted as a 
`political promise,' which is not legally binding, or 
be understood as a `compulsory mandate,' which is 
legally effective.  However, since the National 
Assembly Functions Exercising law was still lying at 
the LY, these two possibilities were still under a 
legally unstable status at the moment when the voters 
cast their ballots.  As a result, what is the legal 
effect of these ballots was later determined by the two 
dominant parties at the LY after the elections.  This 
kind of major legal blunders is unthinkable in any 
normal democratic nations. 
 
"The LY only passed the National Assembly Functions 
Exercising Law after the NA elections.  But there is a 
new controversy.  On the one hand, the LY set 
afterwards the nature of the elections as a `compulsory 
mandate."  So NA members shall vote by showing their 
names.  If they vote in violation of their party's 
campaign promise, their votes will be treated as 
invalid votes.  But the LY left a remnant.  When 
calculating whether the yes votes have passed the three- 
forth threshold, these invalid votes will be counted in 
the total votes.  This has worried some political 
figures that the constitutional amendments may not be 
adopted as planned.  They harshly criticized the 
National Assembly Functions Exercising Law passed by 
the LY.  They insisted that the NA elections have 
always been a substantive `referendum on the 
amendments,' and that the `three-fourth' threshold is 
entirely unreasonable because many democratic countries 
have set a simple majority as the threshold for 
constitutional referenda.  But these people cannot 
justify their suggestion at all.  For which advanced 
democratic nation would not set a threshold for the 
turnout rate when designing a referendum system for 
constitutional revision?  Or is there any democratic 
nation, which would allow a turnout of 23.4% to 
constitute an effective constitutional referendum? 
Even Taiwan's Referendum Law requests a turnout of 50% 
when ratifying a law by the people, not to say 
ratifying a constitutional provision?  In fact, it is a 
pointless debate now to argue whether the `three- 
fourth' threshold is too high.  No threshold for the 
turnout rate was set before the elections.  Even if 
such a high threshold was set afterwards, it can hardly 
cover the two basic problems that there is a serious 
lack of democratic legitimacy of the latest NA 
elections and there are major legal flaws of the 
procedures. 
 
"Voters are not stupid.  They refused to be manipulated 
by politicians.  They dislike that politicians 
exaggerate or misinterpret at will the results after 
every election, making the supporting rates into 
whatever things they want.  Therefore, they have chosen 
to remain indifferent.  The excessively low turnout 
rate is a terrible warning to politicians who are eager 
to manipulate with constitutional reform issues and 
play with the political reform `image engineering'. 
Now the rating for this old drama, of which six 
episodes have been shot, has reached the lowest point. 
Most viewers have turned off their television to 
protest.  Is the bad drama still going to be aired?" 
 
PAAL