逆水行舟的憲政－台灣解嚴二十年回顧憲法來時路

台灣於行憲40周年時解嚴，又已歷20年，本文就之進行憲政斷代史觀察。從制度上看，憲法增修條文的形式已能應付民主、領土、國民以及未來發展的四重考驗。七次修憲內容涵蓋深廣，不乏爭議，但已深化民主政治、規整權力分立並提高福利政治，仍與憲法本文保持體系解釋一致性。它爲勝選的政府提供民主正當性，讓台灣政治信念有異的人們共同相處。憲法增修條文調整總統的憲法權力，促成總統直接民選，加速回復民主，也強化了總統的權力光環。解嚴之前在野者主張回復憲法本文的民主制度，解嚴二十年後已然實現；民間的制憲主張原受基本人權保障；連修憲權也無的總統，主動扶植制憲主張時，引人思考「爲了民主回歸憲法」與「爲了主權否定憲法」之間有無差異。憲法解釋在解嚴後大幅朝向人權保障發展，宣告法律違憲的比例頗高，質量也有提昇，惟人權態度仍然保守。死刑侵犯生命權，大法官卻漠然以對；其在平等原則上的保守也不遑多讓。少量的自由釋例，難以抵銷大量保守作品決定釋憲者整體的人權意識。自始即尚抽象解釋的釋憲權，於解嚴後朝向個案裁判移動，現仍於十字路口徘徊。憲政文化發展上，強人政治文化並未完全消退。解嚴後的台灣，政治鬥爭以訴訟型態進入法院的案件明顯增加，司法或已開始影響政治，也可能是權力仍視司法爲政治工具。法院組織法中檢察機關至今占地極廣，檢察官仍有終身職待遇，檢察獨立、審判獨立、司法獨立與文官中立的概念依然夾纏，司法與行政的分際持續曖眛不清，台灣也就猶未脫離封建文化制約。台灣的藍綠政黨政治，呈現取代或是破壞權力分立制度的態勢。從至少四項憲法解釋中，可以證明政黨競爭經常脫離權力分立的制度邏輯，權力分立反而必須進行制度調整以回應政黨傾軋。

關鍵字

強人政治；憲政文化；政黨政治；人權保障；司法獨立

並列摘要

Martial law was lifted in Taiwan in 1987, the 40(superscript th) anniversary of the country's Constitution. This paper is to review the Taiwan constitutional reform during the period of 1987-2007 from three perspectives: the institutional adjustment, the interpretation of the Constitution, and the development of the culture of the constitutional system. Institutionally, the seven post-martial-law amendments to the Constitution were intended to address the need for revitalizing Taiwan's democracy, redefining territories and citizenship, and fostering continued development of the Constitution. Not free from criticisms, the amendments were sweeping in scope, entrenched democracy, optimized the separation-of-powers system, and strengthened social-welfare policies. They have given legitimacy to those who take over government through elections, thereby allowing people with different political ideologies to coexist in Taiwan. The amendments redefined the scope of presidential powers, provided for direct popular election for the President, expedited the reestablishment of democratic rules, and allowed the President to wield greater political clout. A key agenda of one of the opposition parties before the lifting of martial law was the return to a constitutional state, which was realized during the past 20 years. However, when a president in his second term launched a campaign to overhaul the Constitution for Taiwan, there is a distinction between a bid for restoring the constitutional democracy and a push for sovereignty forsaking the living Constitution. Advocating adoption of a new constitution by the private sector is without doubt within the scope of freedom of speech, but the attempts are subject to scrutiny whenever it is the government that is trying to abolish the Constitution in the name of the people. As to constitutional interpretation, the Grand Justices have made encouraging strides in broadening human-rights protection. There has been an increase in the number of cases in which legal enactments were declared unconstitutional. The quality of interpretations has shown promising improvements, but rigid conservatism still pervades the top tribunal of the constitutional law. The Grand Justices have shown scant interest in rigorously reviewing capital-punishment laws, and similar conservatism marked cases involving equal protection under the law issues. When it comes to human-rights issues, a handful of liberal interpretations have not changed the characterization of the Grand Justices as being sclerotic. In the post-martial-law era, whether Grand Justices should issue constitutional interpretations by rendering judgments in lieu of doing it in an abstract form has become a subject for serious debate. As to the development of the culture of the constitutional system, vestiges of authoritarianism can be still detected. After martial law was lifted, political strife often takes the form of litigation in court. It may lead to the public's perception that either the courts are shaping politics, or quite the opposite, that those in power will not forgo the court as an instrument for political gains. In addition, prosecutors are not entirely separated from judges institutionally. The line remains blurred between the judiciary and the executive branch. Taiwan, therefore, continues to fall victim to familiar monarchism traditions. Party politics, meanwhile, deviates from the normal track of separation of powers. A number of constitutional interpretations have revealed that the institution of separation of powers must be compromised or even rolled back in response to the brutal party hostilities in which constitutional rights are desecrated and wrongs ignored.