Constitution of the Republic of China
|Politics of the |
Republic of China (Taiwan)
|<center>President – Premier|
|<center>Executive Yuan – Legislative Yuan|
Judicial Yuan – Control Yuan
The Constitution of the Republic of China (中華民國憲法) is currently the basic governing document for the areas controlled by the Republic of China, namely all of Taiwan Province, Taipei and Kaohsiung municipalities, and Kinmen county and part of Lienchiang county of Fukien (or Fuchien) Province.
Table of contents
The constitution itself was drafted before the fall of mainland China to the Communists, and was in part drafted as a means of creating a coalition government between the Kuomintang and the Communist Party of China. It was adopted by the National Assembly on December 25, 1946, promulgated by the National Government on January 1, 1947, and went into effect on December 25, 1947. The Constitution was seen as the third and final stage of Kuomintang reconstruction of China. It was enacted amid the Chinese Civil War and the Communists, though invited to the convention that drafted it, boycotted and declared after the ratification that not only would it not recognize the ROC constitution, but all bills passed by the Nationalist administration would be disregarded as well. Zhou Enlai challenged the legitimacy of the National Assembly in 1947 by accusing KMT hand-picked the members of the National Assembly 10 years earlier and thus could not have legal representativity of the Chinese people.
On October 27, 1946, the Central Government selected 17 National Assemblymen from Taiwan to represent Taiwanese people in creating the ROC constitution. However, it is worth noticing that there is little evidence that these delegates were actually elected by the people of Taiwan.
The Constitution establishes a republic with a National Assembly and five branches of government (Yuans): the Executive Yuan, Legislative Yuan, Judicial Yuan, Examination Yuan, and Control Yuan. In practice, the Examination Yuan, the Control Yuan, and the National Assembly have become marginal organizations. Although in practice, the government on Taiwan has become a presidential system, the constitution itself is unclear as to whether the system is intended to be presidential or parliamentary and this has led to some deadlock when, as after the 2000 Presidential elections, the legislature and presidency was held by different parties.
Application in Taiwan
Suspension of the constitution and martial law
On January 10, 1947, Governor Chen Yi announced that the new ROC Constitution would not apply to Taiwan after it went into effect in mainland China on December 25, 1947 as Taiwan was still under military occupation and also that Taiwanese were politically naive and were not capable of self-governing. Later that year, Chen Yi was dismissed and the Taiwan Provincial Government was established. From March 1947 until 1988, Taiwan was in a state of martial law. Although the constitution provided for regular democratic elections, these were not held in Taiwan until the 1990s.
On April 18, 1948, the National Assembly added to the Constitution the "Temporary Provisions Effective During the Period of Communist Rebellion." These articles greatly enhanced the power of the president and abolished the two term limit for the president and the vice president. In 1954, the Judicial Yuan ruled that the delegates elected to the National Assembly and Legislative Yuan in 1947 would remain in office until new elections could be held in Mainland China which had come under the control of the Communist Party of China in 1949. This judicial ruling allowed the Kuomintang to rule unchallenged in Taiwan until the 1990s. In 1991, these members were ordered to resign by a subsequent Judicial Yuan ruling.
In the 1970s, supplemental elections began to be held for the Legislative Yuan. Although these were for a limited number of seats, they did allow for the transition to a more open political system.
In the late 1980s, the Constitution faced the growing democratization on Taiwan combined with the mortality of the delegates that were elected in 1947. Faced with these pressures, on April 22, 1991, the first National Assembly voted itself out of office, abolished the Temporary Provisions passed in 1948, and adopted major amendments (known as the "First Revision") permitting free elections.
On May 27, 1992 several other amendments were passed (known as the "Second Revision"), most notably that allowing the direct election of the President of the Republic of China, Governor of Taiwan Province, and municipal mayors. Ten new amendments to replace the eighteen amendments of the First and Second Revisions were passed on July 28, 1994. The amendments passed on July 18, 1997 streamlined the Taiwan Provincial Government and granted the Legislative Yuan powers of impeachment. The constitution was subsequently revised in 1999 and 2000, with the former revision being declared void the same year by the Council of Grand Justices.
All amendments have been consolidated into a single text of eleven articles, maintained as a separate part of the Constitution.
Challenge of legitimacy
A number of criticisms have been leveled at the ROC constitution by supporters of Taiwan independence. Until the 1990s, the document was considered illegitimate by most supporters of Taiwan independence because of the fact that it was not drafted in Taiwan. Pro-independence advocates have argued that the Constitution was never legally applied to Taiwan because Taiwan was not formally incorporated into the ROC's territory through the National Assembly. Though the constitution promulgated in 1946 did not define the territory of the Republic of China, while the draft of the constitution of 1925 individually listed the provinces of the Republic of China and Taiwan was not among them, since Taiwan was part of Japan as the result of the Treaty of Shimonoseki of 1895. The constitution also stipulated in the Article I.4, that "the territory of the ROC is the original territory governed by it, unless authorized by the National Assembly, can not be altered." In 1946, Sun Ke, the minister of the Executive Yuan of ROC reported to the National Assembly that "there are two types of territory chages: 1. renouncing territory and 2. annexing new territory. The first example would be the Independence of Mongolia, and the second example would be the reclamation of Taiwan. Both would be examples of territory changes."  No such formal annexation of Taiwan islands by the ROC National Assembly conforming with the ROC constitution ever occurred since 1946.
While both symbolic and legal arguments have been used to discredit the application the ROC Constitution in Taiwan, the document gained more legitimacy among independence supporters throughout the late 1980s and early 1990s due to democratization and it is now accepted as the basic law of Taiwan by all of the major parties. However, there are proposals being floated, particularly by supporters of Taiwan independence and the supporters of Taiwan localization movement, to replace the current Constitution with a document drafted by the Taiwanese constituencies in Taiwan.
Referenda and Constitutional reform
One recent controversy involving the ROC Constitution is the right to referendum which is mentioned in the Constitution. Although the right is present, implementing legislation had been blocked until October 2003 by the pan-blue coalition largely out of suspicions that proponents of a referendum law would be used to overturn the ROC Constitution and provide a means to declare Taiwan independence.
In 2003, President Chen Shui-bian proposed holding a referendum in 2006 for implementing an entirely new constitution on May 20, 2008 to coincide with the inauguration of the 12th-term president of the ROC. Proponents of such a move, namely the pan-green coalition, argue that the current Constitution endorses a specific ideology (i.e., the Three Principles of the People), which is only precedented in Communist countries; in addition, they argue that a more "efficient" government is needed to cope with changing realities. Some proponents support replacing the five branch structure outlined by the Three Principles of the People with a three branch government. Others cite the current deadlock between the executive and legislative branches and support replacing the presidential system with a parliamentary system. Furthermore, the current Constitution explicitly states before the amendments implemented on Taiwan, "To meet the requisites of the nation prior to national unification...", in direct opposition to the pan-green position that Taiwan must remain separated from the mainland. In response, the pan-blue coalition dropped its opposition to non-constitutional referendums and offered to consider through going constitutional reforms. A referendum law was passed in October 2003, but this law sets very high hurdles against implementing constitutional changes by referenda.
The proposal to implement an entirely new constitution met with strong opposition from the People's Republic of China and great unease from the United States, both of which feared the proposal to rewrite the constitution to be a veiled effort to achieve Taiwan independence, as it would sever a legal link to Mainland China, and to circumvent Chen's original Four Noes and One Without pledge. In December 2003, the United States announced its opposition to any referendum that would tend to move Taiwan toward independence, a statement that was widely seen as being directed at Chen's constitutional proposals.
In response, the Pan-Blue Coalition attempted to argue that a new constitution and constitutional referenda were unnecessary and that the inefficiencies in the ROC Constitution could be approved through the normal legislative process.
In his May 20, 2004 inaugural address, Chen called for a "Constitutional Reform Committee" to be formed by "members of the ruling party and the opposition parties, as well as legal experts, academic scholars and representatives from all fields and spanning all social classes" to decide on the proper reforms. He promised that the new Constitution would not change the issue of sovereignty and territory.