Constitutional reforms: Looking back and looking ahead
2005-11-16 / Taiwan News / Edited by Tina Lee/Translated by Steven Marsh.
By Chang Wen-chen, College of Law, National Taiwan University:

I want to talk mainly today about the significance of the referendum clause in the seventh constitutional reform attempt this year. What does the road of public voting on constitutional reform mean for Taiwan? Moreover, what importance do constitutional referendums have in view of the global trend toward constitutional governments?

Recently, one piece of important international news has to do with the use of public referendums in deciding a new constitution for the Iraqi people. We can easily see that Iraq still needs the help of the U.S. military, the U.N. and other pertinent international aid organizations with various domestic affairs. But still Iraq wants to use a referendum in establishing a new constitution.

In the process of present day development of constitutional governments, there are at last three paradigmatic shifts regarding the use of referendums to establish or reform a constitution. First of all there is popular sovereignty and the more traditional parliamentary sovereignty vying for a more advantageous position. Then there is collateral dual democracy (direct and indirect democracy) regarding decisions on constitutional standards. Finally there has also been the rise of participatory and deliberative democracy.

Competition between popular sovereignty and parliamentary sovereignty

In view of the competition between national and parliamentary supremacy, we can see that the past two hundred years of constitutional development has actually been a process from “contract” to “sovereignty.” Early constitutions were agreements between the monarchy and aristocrats meant to mutually limit power. The Magna Carta established in England in 1215 is a classic example of this. Even after the Glorious Revolution of 1688, England passed a Bill of Rights, which was fundamentally an agreement with the king to have two houses of parliament (the upper house to represent the interests of the aristocracy and the lower house to represent the interests of the middle class.) In essence it was a social contract to guarantee the rights of one side while attempting to restrict the power of another.

The beginning of the revolutionary notion of explicit sovereignty mentioned in a constitution could be said to have been influenced by the establishment of the constitution of the United States in 1789. The original thirteen American colonies fought to establish an independent nation in order to cast off what they saw as the tyranny and unfair taxation of the British royal house and parliament. Consequently, the establishment of the U.S. constitution was unlike that of any other British colony, which was usually just an agreement between colonists and the British parliament. The U.S. constitution became the embodiment of a declaration of sovereignty. The U.S. colonies were also unable to identify with the British parliament, which is why in the beginning it chose not to design a government that included parliamentary sovereignty, opting instead to emphasize poplar sovereignty. But the popular sovereignty of the time still had to find expression through the consensus of the federal congress.

Till this day, constitutional establishment as well as reform both embody the notion of sovereignty. In more traditional nations that emphasize parliamentary sovereignty, constitutional establishment and reform merely need to be passed by respective legislative bodies. But more and more nations are stressing poplar sovereignty in the process of constitutional establishment or reform. In this vein, many of those nations are implementing public referendums in bringing about this popular sovereignty. Many nations caught in the third wave of democratization, such as Poland and Romania in Eastern Europe, the Baltic states of Lithuania and Estonia as well as the Philippines and Korea in Asia have all used public referendums to establish or amend their constitutions. Even in Europe, where many nations have long emphasized parliamentary sovereignty, changes are in the air. After the 2004 European Union Constitution Treaty, over half of the signatory nations are expected to adopt the use of public referendums for constitutional change (or at least a combination of parliamentary decision and public referendum.)

Taiwan is no exception. Apart from the second article of our Constitution that clearly states the principle of national sovereignty, reform clauses added in 2005 formally include public referendums. This could be said to be a concrete step toward bringing our Constitution closer to the principles of popular sovereignty.

Dual democracy

Many public policy scholars feel it is irrational to put policy decisions up for vote in a referendum, because they feel that many public policy issues can only be resolved by experts. But worries shouldn’t exist when it comes to formulating constitutional policy or standards through the use of direct democracy. This is because the very nature of a constitution is an important standard for an entire nation and the use of direct democracy in deciding its direction has inherent advantages. In other words, public referendums are a necessary condition in the pursuit of constitutional reform and are not to be merely looked upon as a backup for reform decisions made by representative bodies. Consequently, the adoption of direct democracy in the realm of constitutional politics is, in actuality, the collateral use of both direct and indirect democracy known as a “dualist democracy.”

The issues surrounding the establishment or reform of a constitution must have widespread support and must have undergone a high level of consideration by the people it is going to represent. The power of mobilizing people to vote on constitutional issues cannot be generally compared to the more narrow capacity of a vote by a representative body. Only constitutional changes brought about through a high level of mobilization and deliberation by the people can become the genuine basis for a higher law and thus be considered legitimate.

Secondly, the notion of  “constitutional entrenchment” is set in contrast to other legislative standards that can be easily altered. This notion strengthens the theoretical base for the use of direct democracy in the establishment or reform of a constitution.

Advent of participatory democracy and deliberative democracy

The most important aspect of recent constitutional reform is the national identity and ethnic conflict problems many nations have had to face from the end of the 20th century to the beginning of this one. In trying to resolve these problems, a great deal of importance has been attached to the use of direct democracy in bringing about the establishment of constitutions or constitutional reform. This reflects the respect current governments give to the demands of participatory and grass root politics. The use of public referendums means that the people have the opportunity to formally take part in the decision-making process before a resolution is passed. This method stresses the use of “participatory democracy” in bringing about a constitution and is a key component in its implementation.

Another issue stirring public dialogue is identity politics or politics of difference. This issue is another reason why direct democracy is gaining more and more importance within the realm of constitutional politics. Whether it is in Asia, the Middle East, Europe or Africa, the crisis of identity and ethnic conflict are important problems that many places are finding hard to resolve. These issues have a connection with the recent trends of globalization and global terrorism.

It seems apparent that the use of an elite minority model in deciding constitutional issues is no longer trusted by different ethnic groups involved. Tensions between ethnic groups need an impartial and universally participatory mechanism in place to solve the conflict. In this light, direct democracy is considered more conducive to public dialogue than the indirect democracy of parliamentary sovereignty, as it is able to adequately provide for the equal participation of all sides.

But the use of direct democracy makes it impossible to avoid the problem of the ‘tyranny of the majority’ in making decisions. In order to alleviate this problem, there has been more of an emphasis on improving the process and quality of direct democracy through the idea of deliberative democracy. The crux of deliberative democracy stresses that any democratic policy must be completed through a process of adequately disseminating information as well as rational dialogue that incorporates a variety of different views.

International examples

The Canadian province of British Columbia just completed in May of 2005 an electoral reform referendum initiated by the Citizens’ Assembly on Electoral Reform. This was the first time in world history that proposals for such reforms were handed over to the people to decide by direct vote.

Created by the government of British Columbia, the Citizens’ Assembly on Electoral Reform consists of 158 Canadian nationals, two representatives from the indigenous population and one chairman. Those chosen had to reflect the adult population in British Columbia by age, gender and regional distribution. In order to select the 158 members, the British Columbia election committee held a month-long publicity campaign. During this time, a total of 75,000 voters renewed their personal data and registered.

The second phase hoped to allow the members of the Citizens’ Assembly to accumulate pertinent background knowledge. Experts and scholars on deliberative democracy were invited to give members a three-month course.

During this training period, each member of the Citizens’ Assembly had to take part in at least twenty community forums in order to gauge sentiments concerning electoral reform. In the next phase they were required to work on the important task of deliberation. Apart from direct discussions among the 158 members, they also designed an on-line discussion center. Finally, apart from proposing reform drafts, the Citizens’ Assembly had to compile a report outlining feasible reform systems as well as unfinished issues. The reform drafts were then put to public referendum. Although the drafts were not formally passed, the percentage of votes in favor was very close to the legally mandated 60 percent (57.69 percent). Many observers and experts feel that this was the first successful experiment in deliberative democracy.

In the future, after public referendums have become a formal part of the Constitution in Taiwan, the Legislative Yuan will serve as a mechanism to propose constitutional reform and will also be responsible for explaining proposals while leading the public in adequate discussion of the pertinent issues. Additionally, our nation’s judicial system should take a more active part in examining and safeguarding the rights of the minority to equally take part in the process of constitutional reform.
 

Inicio de página