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Wen-Chen Chang, National Taiwan University & National Chiao Tung University and Yi-Li Lee, National Tsing Hua University Mixed constitutions in East Asia: South Korea and Taiwan as examples

A variety of constitutions mixing with liberal and illiberal, authoritarian and democratic elements have caught scholarly debates in recent years. Much attention has been given to illiberal or authoritarian constitutions embraced in undemocratic or not fully democratic polities that lack free and open elections for key political posts and entail no genuine public participation for politics. Yet, few has focused on whether a fully democratic polity with a vibrant civil society may still embrace constitutionalism mixing with illiberal elements. If such an illiberal but fully democratic constitution exists, what functions such an alternative form of constitutionalism serve and what distinctive features it may entail? How should it be judged against the orthodox of constitutionalism?

To answer the above question, this paper is set to explore mixed constitutions of South Korea and Taiwan, the two democracies with vibrant civil societies in East Asia. Three distinctive features in both constitutions have demonstrated that some illiberal elements are embraced. First, both constitutions include citizen duties, and those duties have usually been invoked in judicial interpretations and government practices. Second, dual comments to liberal rights and principles and to other values and interests are clearly observed particularly for remedial actions undertaken for gender equality, people with disabilities, and indigenous people. Third, certain extents of higher respect for political authority or elites have been shown particularly in technocratic governance. To further illustrate how this illiberal but democratic constitution may function, this paper takes three examples in both South Korea and Taiwan regarding the use of digital technology in public health crisis, the development of artificial intelligence in the context of digital unfreedom, and finally, regulatory responses with fake news. This paper concludes with an assessment of this alternative form of illiberal but democratic constitutionalism and how it may still harmonize with the typical orthodox of constitutionalism.

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