The global convergence of constitutions has given rise to a common set of
constitutional languages.
(^56) Constitutional developments in Taiwan have clearly
showed the trend of global convergence.
Independent commissions and the empowerment of the court
Establishing independent commissions is a trend that has swept the world in recent
years. Independent commissions, primarily based upon the American model,^57 have
been introduced and institutionalized in various legal and political contexts, and
different socioeconomic contexts breed different issues to be resolved.^58 For various
purposes, such as enhancing technical professionalism, pacifying political confron-
tation, or boosting administrative efficiency, independent commissions are usually
established to ensure that administrative affairs are immune from unduly political
intervention, and hence are conducted in a more professional, neutral, or efficient
manner. Notably in the context of democratic transitions, the establishment of
independent commissions may be a double-edged sword. In newly emerging dem-
ocracies, establishing an independent commission to take charge of certain adminis-
trative affairs is a way not only to respond to the global trend but also, probably more
importantly, to build public trust in the government. However, concerns of
accountability are sparked since independent commissions are made distinct by
their insulation from the oversight and management of the administrative bureau-
cracy. These concerns can be severe for an emerging democracy whose judicial
system and civil society still lack a system of checks and balances.
59
In Taiwan, while several government agencies are named “commissions,”
very few of them are independent in both the legal and the operational sense.
These commissions were created at different times for various reasons, but none
had to do with independence. Rather, they were created for representation, foreign
intervention, political strategy, and even expediency. The National Communica-
tions Commission (NCC), established in 2006 , was the first ministerial-level inde-
pendent regulatory commission in Taiwan.^60 Not surprisingly, its establishment
(^56) Yeh and Chang, “Transnational constitutionalism,” 97 – 8.
(^57) On the evolution of independent commissions in the United States, see e.g. Gary Breger
and Marshall J. Edles, “Established by practice: the theory and operation of independent
federal agencies” ( 2000 ) 52 Administrative Law Review 1111.
(^58) See e.g. Mariana Mota Prado, “The challenges and risks of creating independent regula-
tory agencies: a cautionary tale from Brazil” ( 2008 ) 41 Vanderbilt Journal of Transnational
Law 435.
(^59) Concerning institutional arrangements in emerging democracies and the issues of public
trust and accountability, see Ja ́nos Kornai, Bo Rothstein, and Susan Rose-Ackerman (eds.),
Creating Social Trust in Post-socialist Transition (Political Evolution and Institutional
Change)(New York: Palgrave Macmillan, 2004 ).
(^60) Concerning the development of independent commissions in Taiwan, see Jiunn-rong Yeh,
“Experimenting with independent commissions in a new democracy with a civil law
tradition: the case of Taiwan,” in Susan Rose-Ackerman and Peter Lindseth (eds.),
Comparative Administrative Law(Northampton, MA: Edward Elgar, 2010 ), pp. 246 – 64.