Believe in the Ideal, not the Idol: Is Constitutional Idolatry Happening in Taiwan?

Chien-Chih Lin

Academia Sinica, Taiwan

The supreme law in Taiwan is officially known as the Constitution of the Republic of China (ROC Constitution), which was enacted in Nanjing, China in 1947. After the establishment of the People’s Republic of China (PRC) in 1949, the then ruling party, the Kuomintang Party (KMT), fled to Taiwan, with the nascent ROC Constitution in tow. Since the Constitution was enacted for a geographically immense country but not for a small island-state, some of the original constitutional provisions, such as the protection of local autonomy in Mongolia, have become increasingly bizarre if not ridiculous. Currently, the ROC Constitution governs Taiwan and other neighbouring islets, not anywhere else. As a consequence, the Constitution has been amended multiple times since Taiwan transformed itself from a dictatorship to a democracy in 1987.

Recently, proposals for another round of revisions have emerged in Taiwan at the behest of both the ruling Democratic Progressive Party and the opposition party KMT. Although disagreements exist as to the content of future constitutional amendments, both parties have agreed to establish an inter-party Constitutional Amendment Committee, which will prioritise some issues that are more consensual, such as lowering the voting age from 20 to 18 and abolishing the Control Yuan as well as the Examination Yuan, both of which are coequal branches along with the executive, the legislature, and the judiciary in the ROC constitutional framework. By contrast, other small parties suggest that only a new constitution will solve the constitutional and political dilemma Taiwan currently faces, in terms of updating its constitution. In their opinion, if it claims to be an independent country, Taiwan should stop being governed by a constitution enacted for China. Unsurprisingly, this has incurred the wrath of the Beijing government (again), which continues to claim that Taiwan is part of its territory. Whatever stances the different camps hold, all are vulnerable to the criticism of constitutional idolatry, defined by one recent account as: ‘drastically or persistently over-selling the importance and effects of written constitutions’.

Is the importance of a codified constitution over-emphasised in Taiwan? The answer depends in part on how wide the gap is between the capital-C Constitution and the small-c constitution. Ceteris paribus, a written constitution is more likely to be overvalued when the codified provisions function less frequently as the supreme law of a land, because it makes little difference whether a constitution is codified under this circumstance. Namely, constitutional idolatry emerges particularly when a constitution gradually becomes a parchment barrier. For example, legally speaking, the ROC Constitution and its amendments are the supreme law in Taiwan. Practically, however, many of its provisions are supreme only insofar as these are consistent with long-term political practices. That is, some unwritten constitutional norms have essentially replaced constitutional provisions and become a crucial source in forging Taiwan’s constitutional core features. Some of these norms involve the foundational structure of the separation of powers. To display just one example: although the Constitution was formally amended in 1994 to provide for a directly elected president, it still designates the Prime Minister as the head of the executive branch, and only mentions the presidential power on matters concerning national security and other ceremonial issues. Ostensibly, therefore, Taiwan has a semi-presidential system under which the President has limited formal authority. In reality, however, the constitutional system in Taiwan should be classified as full-blown presidentialism due to a combination of party politics and electoral politics on the ground. The executive branch is in practice led by the President, not the Premier, who serves at the pleasure of the President rather than answering to the legislature. No Prime Minister has ever challenged the status of the President, notwithstanding the former’s formal constitutional mandate, and this political reality is crystal clear within Taiwan. The relevant constitutional clauses have thus encountered what Richard Albert has termed constitutional desuetude, which occurs when a constitutional provision encounters ‘conscious nonuse and public repudiation’ even if it is textually etched in the written constitution. This also indicates that an important part of Taiwan’s constitutional politics operates on an unwritten constitution.

The inconsistency between formal constitutional clauses and informal constitutional practices is even starker in respect to constitutional identity. Specifically, since 1991, Article 1 of the constitutional amendments have divided the Republic of China into two regions: Taiwan is the ‘free area’ of China and the People’s Republic of China is the ‘mainland area’. Therefore, the amendments prescribe in the preamble that the purpose of constitutional revision is to ‘meet the requisites of the nation prior to national unification’. Accordingly, Article 11 of the Constitution demands that ‘Rights and obligations between the people of the Chinese mainland area and those of the free area, and the disposition of other related affairs may be specified by law’. That is, the preamble of the constitutional amendments plainly enshrines the so-called one-China policy. And yet, since the early 1990s, an overwhelming majority of Taiwanese have regarded themselves as ‘Taiwanese’ rather than ‘Chinese’. But the explicit grounding of the One China policy into the Constitution has been used by the PRC to enhance its claim over Taiwan. In 2016, for example, Wang Yi, the PRC’s Foreign Minister, took advantage of this, arguing that even the ROC Constitution admits that there is only one China in the world. For Taiwanese citizens that identify as Taiwanese and prefer democracy to authoritarian rule, this is embarrassing and hard to gainsay, constitutionally speaking.

The previous two examples demonstrate that some written constitutional provisions are not only detached from the views held by mainstream society, but also repugnant to Taiwan’s national identity. In the context of Taiwan, this constitutional idolatry is further aggravated by the concept of “fatung”. This concept refers to the legally authentic succession within a regime in Chinese political culture. Namely, whoever inherits fatung can justify his rule over China. According to Jiunn-rong Yeh, the ROC Constitution became the symbol of fatung because it was popularly enacted by all Chinese people in 1947. Therefore, the KMT has used the Constitution to undergird its naïve claim that the Republic of China in Taiwan was the only legitimate Chinese regime after the establishment of the PRC in 1949.

Having said that, we should not miss the forest for the trees. Even though the Constitution was essentially written for another country and still contains highly unrealistic provisions, Taiwan’s constitutional stability should be attributed in part to the written Constitution. In the domain of rights, Taiwan has made great strides in the area of human rights protection, such that among Asian countries freedom of the press is best protected in Taiwan, as is gender equality. Not to mention that in 2019 Taiwan became the first Asian country that legalise same-sex marriage. The bill of rights etched in the Constitution has functioned significantly in two ways. First, constitutional judges have relied on the written constitutional provisions as the textual peg on which to hang their progressive judgments. Secondly, civil society and NGOs have invoked the bill of rights as leverage for social and political change. As to the separation of powers, the codified governmental structure, notwithstanding all its shortcomings, at least coordinates power and facilitates checks and balances. For example, judicial review is plainly granted to the judiciary, a constitutional feature that has strengthened judicial legitimacy and authority to some extent. Furthermore, the explicit presidential term limit has also contributed to peaceful party turnover, as it is too clear to be transgressed.

Admittedly, many of these features could be implemented through statutory law, but a codified constitution has made these basic yet crucial foundational norms more endurable, and especially so in unstable political environments. This may be more pivotal in young democracies, where constitutionalism has not been deeply entrenched.

Chien-Chih Lin is Associate Research Professor at Academia Sinica, Taiwan

Suggested citation: Chien-Chih Lin, ‘Believe in the Ideal, not the Idol: Is Constitutional Idolatry Happening in Taiwan?’ IACL-AIDC Blog (12 January 2021) https://blog-iacl-aidc.org/cili/2021/1/12/believe-in-the-ideal-not-the-idol-is-constitutional-idolatry-happening-in-taiwan