“人治”與“法治”遭遇下的菁英角色及憲政發展－台灣憲政運作之回顧及前瞻(1950～)

Abstract

This article attempts to describe and review how the characteristics of Taiwan's political regime would have been formed since it has not only been inherited a tradition of the rule of human, but also been encountered the modem democratic requirement of the rule of law. Furthermore, this article also tries to analyze the ideal configuration of Taiwanese constitutional design based upon the plausible hybrid system between rule of law and rule of human. In accordance with rule of human's cultural background, this paper considers that political leaders, especially those who occupy the highest position in the Constitution such as the President, should easily fall into the strongman category. This paper therefore proposes that the composition of leadership under Taiwan's hybrid context should embody three elements: authoritativeness, rule by law and benevolence both at heart and as a strategy. This paper then reviews the history of Taiwan's constitutional development since 1950 based upon this theoretical construct of leadership, and finds that it indeed is able to enrich our understanding of several critical moments in this historical process. This paper then suggests that the element of ”benevolence” should be included in the design of the constitutional system, which implies that the ”semi-presidential system” will lead to a ”presidential system” while taking into account how to avoid the role of president falling into a didactic struggle. The relevant design includes a bi-cameral system and a single-member district with a two-vote electoral system. This paper eventually expects that this kind of design may be able to utilize the ”benevolence” in leaders which causes them to be above all kinds of political struggles, and to deliver benefits to the people as many as possible.