policy, excluding other areas of government. As a result, despite the actual influ-
ence that the president possesses in all policies, he or she is not held accountable
for most of these decisions. Similarly, the concern of accountability is present in
the context of transnational constitutionalism, as the need to accommodate global
trends grows urgent. The establishment of the first independent regulatory com-
mission, the NCC, is a remarkable accomplishment toward meeting the trend of
digital convergence. Yet there are concerns as to whether and to what extent the
NCC should be accountable to the Executive Yuan’s supervision.^72
In addition, both transitional and transnational constitutionalism is required to
address the problem of the democratic deficit. As Taiwan’s experience reveals,
constitutional revisions are often undertaken by way of compromise in the demo-
cratic transition in order to safeguard the partisan interests of political parties. As a
result, these revisions are unable to reflect public opinion. Even after several
rounds of constitutional revision, temporary compromise fixed the Constitution
to an extent that rendered future revisions quite unlikely. Regional arrangements
related to trade and commerce may also pose problems of a democratic deficit.
Regardless of potential economic benefits, the ECFA was criticized as having been
planned with limited public participation. Hence, fierce dispute has arisen as to
whether the ECFA will be open for public referendum. From 2010 to 2011 , an anti-
ECFA political party, the Taiwan Solidarity Union (TSU), launched four rounds of
proposals asking for the ECFA to be subject to referendum. Yet these proposals
were overruled by the referendum review committee that was vested with discre-
tionary power to review referendum proposals.
Last but not least, derogation of the rule of law is another challenge posed by
both transitional and transnational constitutionalism. During Taiwan’s democratic
transition, with the advent of the first regime change that gave birth to a divided
government, bitter politics ensued and were exacerbated as the Constitution and
subsequent revisions were all unable to provide a sustainable framework for an
effective mechanism of checks and balances. Ineffectiveness of constitutional
provisions in addressing these issues may further undermine the rule of law.
For example, in J.Y Interpretation No 585 , concerning the constitutionality of the
special commission established by the Legislative Yuan to investigate the gunshot
saga, the court, while declaring most of the powers conferred on the Commission
unconstitutional, recognized to a certain extent the Legislative Yuan’s power to
investigate, on which the Constitution unequivocally remains silent. The court was
thus criticized as making law, a power traditionally vested with the legislature.
Similar problems can be seen in the context of transnational constitutionalism.
International treaties are norms derived from other jurisdictions, and their applica-
tion may derogate the domestic democratic thesis. Rule-of-law concerns may also
(^72) The Constitutional Court rendered J.Y. Interpretation No 613 ( 2006 ), available atwww.
judicial.gov.tw/constitutionalcourt/EN/p 03 _ 01 .asp?expno= 613.