iv. challenges and prospects
As Taiwan’s experience reveals, transitional constitutionalism and transnational
constitutionalism have both been playing important roles, not only in serving as
major driving forces, but also in enriching the context of a new democracy.
However, conceived as a departure from traditional constitutionalism, the develop-
ment of transitional and transnational constitutionalism as such has not come
without challenge.
70
In prospect, we observe three threads of constitutional devel-
opment in Taiwan, both as prophecies for constitutional development into the next
decade and as solutions to overcome challenges arising from the development of
transitional and transnational constitutionalism.
Challenges of democratic deficit, accountability, and the rule of law
The challenges posed by both transitional and transnational constitutionalism can
be characterized as the problems of accountability, democratic deficit, and the rule
of law.
71
In traditional constitutionalism, decision-makers must be held account-
able for their decisions, and they are subject to checks and balances. Furthermore,
the democratic thesis of constitutionalism also mandates that all decisions and
norms be made and generated with sufficient democratic legitimacy. Finally, the
rule of law requires decision-makers to make their decisions pursuant to the law.
All these mechanisms purported under traditional constitutionalism prevent
decision-makers from abusing their power in decision-making. However, as the
development of Taiwan also demonstrates, transitional and transnational constitu-
tionalism both fall short of meeting these requirements. Thus, these challenges
must be addressed.
First of all, accountability remains the very issue to be resolved. Continuous
rounds of constitutional revision in the 1990 s authored a quasi-presidential system
for Taiwan, rendering an ambiguous division of power between the president, the
premier, and the Legislative Yuan. Concerns of accountability arose especially
around the role of the president, who, according to the Constitution, has the power
to appoint the premier as the head of government without legislative consent, and
hence exerts insurmountable influence upon the government. Yet the text of the
Constitution confines the power of the president to national security and foreign
(^70) See e.g. Joachim Jens Hesse, “Constitutional policy and change in Europe: the nature and
extent of the challenges,” in Joachim Jens Hesse and Nevil Johnson (eds.),Constitutional
Policy and Change in Europe(New York: Oxford University Press, 1995 ), pp. 3 – 19. But see
Kim Lane Scheppele, “Aspirational and aversive constitutionalism: the case for studying
cross-constitutional influence through negative models” ( 2003 ) 1 International Journal of
Constitutional Law 296 (arguing that negative rejection, rather than positive acceptance,
plays a major role in transnational exchanges).
(^71) See Yeh and Chang, “Transitional constitutionalism,” 170 – 5 ; Yeh and Chang, “Trans-
national constitutionalism,” 112 – 14.