Undemocratic Constitutional Law in Taiwan

Chien-Chih Lin

Institutum Iurisprudentiae, Academia Sinica

Although recent decades have witnessed the emergence of populism around the globe, several signs suggest that Taiwan, officially known as the Republic of China, seems to be resilient to democratic recession. For example, Taiwan just went through its third peaceful party turnover in 2016, and more importantly, the Taiwan Foundation for Democracy published a public opinion poll in which 80 percent of Taiwanese agreed that democracy is the best game in town, despite all its shortcomings. Having said that, Taiwan’s democracy is indeed built on shaky constitutional grounds: the Constitution of the Republic of China (ROC Constitution) contains and entrenches several undemocratic elements that prolong the ideology and hegemony of the self-deceiving one-China policy. This blog post indicates that 1) the written constitutional law in Taiwan is undemocratic both procedurally and substantively to a considerable extent, and 2) informal constitutional change has not fundamentally altered this undemocratic constitutional scheme. Namely, the so-called “Taiwanization” or “indigenization” of the ROC Constitution is too romantic a description to be true.

Development of Taiwan’s Constitution Since 1947

In Taiwan, the ROC Constitution, promulgated in Nanjing, China on January 1, 1947, is the supreme law of this island-state after the defeat of the Nationalist Party (KMT) in the Chinese civil war in 1949. At the beginning, even the current Chinese Communist Party participated in the discussion of the draft constitution, but it boycotted the constituent assembly later with the escalation of armed conflict with the KMT. During the constitution-making process, 17 representatives from what was then Taiwan Province joined the constituent convention, although their appearance in Nanjing was largely token. Furthermore, during the martial law period from 1949 to 1987, the Constitution was never revised, which undergirded the KMT’s fantasy that it was the only legitimate China in the world. Nonetheless, the fact that it had never been formally revised during this period does not imply that it was put into effect. To the contrary, the KMT government promulgated the Temporary Provisions against the Communist Rebellion on May 10, 1948, which suspended many provisions of the Constitution, including the term limit of the president.

After democratization in 1987, Taiwan revised the ROC Constitution in seven rounds of amendment instead of enacting a new constitution. Because most of these amendments were enacted and passed by the people in Taiwan, and since they have greatly rendered the Constitution more tailored to Taiwan’s political reality and needs, many scholars contend that the constitutional amendments have “Taiwanized” the ROC Constitution. However, this argument merits further scrutiny because the democratic accountability of the constitutional amendments was problematic both procedurally and substantively.

Procedural and Substantive Deficits in Constitutional Change

For starters, the first-term representatives of the National Assembly that revised the Constitution were actually elected in China in 1948 and continued to serve until 1991. Even after 1991 when the representatives were elected solely by Taiwanese people, electoral malpractice, such as vote-buying and cheating, was rampant, partly because Taiwan was at the early stage of political transition and democracy was far from mature at that time. What is worse, since the National Assembly monopolized the power to amend the Constitution, “constitutional rent-seeking” was prevalent: the representatives would not amend the constitution unless they received something in exchange. The farce of the fifth-round constitutional amendments on September 15, 1999 was vivid, in which the representatives prolonged the limit of their own term by amending the Constitution. This constitutional change immediately enraged the Taiwanese people and eventually the Constitutional Court declared the constitutional amendments unconstitutional and void on both procedural and substantive grounds on March 24, 2000.

Furthermore, the Constitution and the constitutional amendments are undemocratic in a fundamental sense: they still enshrine the one-China policy, one kind of political nostalgia that is repugnant to the will of most Taiwanese nowadays. Specifically, the Constitution divides China, however defined, into two regions: Taiwan is the free area of China and the People’s Republic of China the mainland area. Moreover, the constitutional amendment still prescribes in the preamble that the purpose of constitutional revision is to pave way for the ultimate reunification with China. This should be attributed in part to intimidation by China － another reason why the Constitution and the constitutional amendments cannot properly reflect the will of Taiwanese people. In 2005, China promulgated the Anti-Secession Law, which legalizes the use of force against any Taiwan independence movement. And constitutional change in Taiwan, including enacting a new constitution and constitutional amendments, may be seen as one means of secession from China’s perspective.

Can the Constitution be Indigenized through Informal Change?

If enacting a Constitution of Taiwan is too provocative and risky to be a viable option, can the Taiwanese people indigenize the ROC Constitution through informal constitutional change? In Taiwan, social movements and judicial review have played a critical role in the process of informal constitutional change. The Wild Lily Movement (which cried for, inter alia, the dissolution of National Assembly and the abolition of Temporary Provisions) and Constitutional Court Interpretation No. 261 on June 21, 1990 are two paradigmatic examples that set the stage for political liberation. In addition to bringing about democracy in Taiwan, they have also implicitly transformed the constitutional identity of Taiwan, because both demanded that national elections should be held only in Taiwan, rather than in mainland China. After the second party changeover in 2008, an indicator of solid electoral democracy, two other student movements —the Wild Strawberries Movement and the Sunflower Movement—ensued as a result of the threat from China that might jeopardize Taiwan’s liberal democracy. However, neither of them successfully stimulated further constitutional revision.

In addition to social movements, another common approach to bring about informal constitutional change is through judicial review. In Taiwan, the Constitutional Court has long been lauded as the guardian of human rights. Despite this reputation, the Constitutional Court is extremely cautious not to step directly into the political thicket of controversies concerning national identity, operating near the margins rather than in the center. On the one hand, the judiciary has endeavored to secure all basic rights necessary to bring about political change, such as the right to vote (the major appeal of the Wild Lily Movement) and the freedom of assembly (issues involved in the Wild Strawberries and the Sunflower Movements). On the other hand, it has refused to respond to the inquiries of the one-China ideology. What is worse, the Constitutional Court has implicitly reinforced the one-China paradigm in some decisions, such as Interpretation No. 328 (November 26, 1993), Interpretation No. 329 (December 24, 1993), and so on. These decisions demonstrate the international constraints imposed upon domestic constitutional courts. In the Central and Eastern European context, courts may use these external pressures to facilitate and consolidate democracy when domestic human rights protection lags behind by regional or international standards. In the context of East Asia, however, the dynamic is reversed: China’s ubiquitous clout has forced the Taiwan Constitutional Court to be unwilling to tackle the core issue of democracy.

Chien-Chih Lin is an assistant research professor at Institutum Iurisprudentiae, Academia Sinica (Taiwan).