The Constitution of the Republic of China is the fundamental and supreme law of this country; its amendment shall be made by the governmental body governing constitutional amendment in accordance with constitutional due process. The National Assembly is the constitution-amending body established by the Constitution; an amendment it enacts based on its powers bestowed by the Constitution is of equal status with the original constitutional provisions. If, nonetheless, an amendment should be allowed to alter the existing constitutional provisions which have essential significance and upon which the governing order is founded, the integral governing order of the Constitution would be effectively destroyed. For this reason, such an amendment lacks the requisite appropriateness. Among the constitutional provisions, principles such as the principle of the democratic republic under Article 1 of the Constitution, the principle of sovereignty of and by the people under Article 2, the principle of protection of fundamental rights of the people under Chapter Two as well as the principle regarding checks and balances of governmental powers shall have essential significance, upon which the integrality of fundamental constitutional principles hinges. Such provisions form the constitutional democratic order, which is the foundation of the current Constitution and by which any governmental body established by the Constitution is obligated to abide. Unless its process of amendment contains clear and gross flaws or its content involves a breach of the constitutional democratic order, an amendment to the Constitution shall be respected (with reference to J.Y. Interpretation No. 499). In other words, so long as an amendment to the Constitution does not contradict the principle of the democratic republic and the principle of sovereignty of and by the people, or does not involve alteration to the core contents of fundamental rights of people or the principle of checks and balances of governmental powers, such an amendment does not breach the constitutional democratic order.
Article 4, Paragraphs 1 and 2 of the Additional Articles of the Constitution provide that: “Beginning with the Seventh Legislative Yuan, the Legislative Yuan shall have 113 members, who shall serve a term of four years, which is renewable after re-election. The election of members of the Legislative Yuan shall be completed within three months prior to the expiration of each term, in accordance with the following provisions, the restrictions in Articles 64 and 65 of the Constitution notwithstanding: (1) Seventy-three members shall be elected from the Special Municipalities, counties, and cities in the free area. At least one member shall be elected from each county and city. (2) Three members each shall be elected from among the lowland and highland aborigines in the free area. (3) A total of thirty-four members shall be elected from the nationwide constituency and among citizens residing abroad” (“Amendment 1”). “Members for the seats set forth in Subparagraph 1 of the preceding paragraph shall be elected in proportion to the population of each Special Municipality, county, or city, which shall be divided into electoral constituencies equal in number to the number of members to be elected. Members for the seats set forth in Subparagraph 3 shall be elected from the lists of political parties in proportion to the number of votes won by each party that obtains at least 5 percent of the total vote, and the number of elected female members on each party’s list shall not be less than one-half of the total number” (“Amendment 2”). These two amendments adopt the Single Electoral Constituency with Two Votes System, namely, a two-vote system combining the single electoral constituency system with the proportional representation system. Legislators elected from Special Municipalities, counties, and cities are elected based on the single constituency system in accordance with the beginning part of Amendment 2, with one legislator elected from one constituency each. As to those elected from the nationwide constituency and among citizens residing abroad, according to the latter part of the same Amendment they are elected based on the proportional representation system in which ballots are cast to a political party list, and a 5% threshold is required for political parties to be allotted seats. Only those political parties gaining 5% ratio of political party ballots or more will be allotted seats for legislators of the nationwide constituency and citizens residing abroad. The election results of the single electoral constituency and those of political-party ballots are calculated separately in deciding the quotas of these two categories of legislators-elect (the calculation method thereof hereinafter referred to as “Parallel System,” with reference to the minutes and stenographic records of the National Assembly published in October 2005, at page 304).
Article 129 of the Constitution stipulates that: “The various kinds of elections prescribed in this Constitution, except as otherwise provided by this Constitution, shall be by universal, equal, and direct suffrage and by secret ballot.” The equal suffrage referred to therein is specifically prescribed by the right to equality and suffrage under Articles 7 and 17 of the Constitution. Judging by the language therein, it follows that the constitution-amending body is given room to consider the circumstances and assess the pros and cons. However, since elections are an indispensable means to implement fundamental democratic principles such as considering public opinion and accountability while manifesting the principle of sovereignty of and by the people, the voting method prescribed must not impede the realization of the principle of the democratic republic and the principle of sovereignty of and by the people, nor shall it alter the core contents of the right to equality and suffrage.
As to legislative elections in different countries, some give more weight to the representation of electoral constituencies and adopt the relative majority rule, while others give more weight to the differences in political parties and adopt the political party proportional representation system. These are different alternatives of democratic politics and reflect the differences among political cultures in respective countries. Provisions regarding adjustment to the voting methods of legislators of the Legislative Yuan stated in Amendments 1 and 2 adopt the Parallel System and require the number of seats of political party proportional representatives to be 34 seats. This reflects the choice made by our citizens with respect to democratic politics, with the intention of satisfying both the representativeness of electoral constituency and diversity of political parties. These amendments, providing that the number of seats of political party representatives shall be allotted based on earned political party ballots, aim to enhance the operation of political party politics by means of political party proportional representatives as a way to aid and complement regional representatives. Such a combination and its allotment of seats are a display of the general will of the people, and they do not contradict the principle of the democratic republic and the principle of sovereignty of and by the people. Allegations invoking the practices of other electoral systems (such as an coexisting system) to challenge the Parallel System provided in Amendments 1 and 2 as in breach of the constitutional democratic order shall not be sustained. Although the 5% threshold for political parties provided in Amendment 2 may result in a certain discrepancy between the percentages of ballots received by, and seats allotted to, political parties and create an appearance of unequal ballots, its purpose is to ensure the efficiency of legislative operations and the smooth interaction between the executive branch and the Legislature is not impeded by a clustering of small parties and fragmentation of the political party system. In addition, it may be observed from the election results of political party proportional representative elections in recent years that the possibility of winning elections for those political parties which are not the two main parties has not been completely ruled out. As a result, the provision concerning the threshold for political parties stated in Amendment 2 does not hinder the realization of the principle of the democratic republic and the principle of sovereignty of and by the people, nor does it alter the core contents of the right to equality and suffrage. As such, it is within the scope of the constitution-amending body to consider the circumstances and assess the pros and cons, which is not in violation of the aforementioned constitutional democratic order. As for the provision regarding the Parallel System and the threshold for political parties stated in Article 67, Paragraph 2 of the Civil Servants Election and Recall Act, since it was enacted in accordance with Amendment 2 and its content is identical thereto, such a provision raises no doubt of conflict with the Constitution.
The Petitioner, the Taiwan Constitution Association, was a candidate party in a political party proportional representative election. Subparagraph 1 of Amendment 1 provides that at least one legislator shall be elected from each county and city. Such a provision relates to the division of electoral constituencies instead of to the political party proportional representative elections. Furthermore, the Petitioner did not state how its constitutional right had been injured. The petition in this part does not meet the requirements provided in Article 5, Paragraph 1, Subparagraph 2, of the Constitutional Interpretation Procedure Act. Under Subparagraph 3 of the same provision, such a petition for constitutional interpretation shall not be granted. Moreover, the other petitioner, the Green Party, was a participant in a final and binding judgment and not a party to the judgment at issue. As such, its constitutional right was not impaired as a result of the judgment, and hence it may not file a petition for constitutional interpretation on such a ground. Thus, it shall be hereby stated that the petition shall not be accepted in accordance with the aforementioned provisions.
Translated by Eleanor Y.Y. Chin, Esq. and Chien Yeh Law Offices