Taiwan is among the late comers to the third wave of democratization, having held its first truly democratic election in 1996 and first peaceful transition of power in 2000. Unlike many others that went through much more explosive changes in regimes, Taiwan succeeded at a gradual liberalization devised by the autocratic government under the Nationalist Party.
The current Taiwanese representative democracy inherited the political legacy of the previous autocratic regime under the Nationalist Party. The most prominent part of that legacy is a constitution devised outside of the island a century ago. The Constitution of the Republic of China, the guiding supreme law of Taiwan, was formulated in Mainland China through decades of conflicts between warring factions of the Nationalist Party, Japanese invasion, negotiations between major and minor political parties, and a civil war that cemented the Communists’ ascendance to power in the mainland and the Nationalists’ retreat to Taiwan.
Today, this Constitution applies only to modern Taiwan, a liberal island with a distinct identity and populist sentiments for formal independence that should not be underestimated. And yet, in a vastly different place and time, the Constitution exploited and abused by dictators for nearly a century on either side of the Taiwan Strait remains the legal reality in the democratic Taiwan. Therefore, it is entirely reasonable to argue that to base a democratic regime on a constitution like this may prove dysfunctional and perilous to institutions given how detached the constitution is from Taiwan’s political reality and its current challenges.
This essay seeks to counter the argument on two grounds. First, lack of compliance and wartime informal institutions were what enabled authoritarianism, not the body of the Constitution. The constitution as it stands, despite its age, is one that actually contains several desirable features in a liberal democracy. And second, being cognizant of the existential threat of the Communist mainland regime’s voracious appetite, the constant evolution of the ROC Constitution is the pragmatic choice that balances the threat of a rivaling autocratic regime against the need for adapting for localized governance.
A Cross-Strait Tale of Legal Evolution: Constitution of the ROC
The journey of attempts of a modern Chinese constitution began with the Provisional Constitution of the Republic of China in 1912, after the Qing Dynasty was toppled by a warlords and a sweeping democratic movement. The Provisional Constitution was clearly inspired by the French Third Republic and the United States. It contained a bicameral National Assembly comprised of a Senate and a House of Representatives, a ceremonial presidency, a collectively responsible cabinet with a premier as head of government, an independent judiciary and language protecting individual rights and duties. The nomenclature was clearly nothing original and often taken straight from constitutional documents from established western democracies. (Wang, 2004, p. 173-175)
Even though the document was constantly ignored and overridden by warring regimes across the country during the period of warlordism of 1910s and 1920s, and it was fully superseded by another Provisional Constitution of the Political Tutelage Period, which enshrined Soviet-style Nationalist authoritarianism, it set the tone for all ensuing attempts at a liberal democratic constitution.
The following two decades saw intermittent negotiations between all prominent political parties, with the Nationalist Party and the Communist Party in particular due to their direct control over their affiliated armed forces and their efforts combating the Japanese invasion during World War II. This culminated in the post war political convention from 1945-46 and produced the draft that would eventually be largely adopted as the main body of the Constitution of Republic of China. (Lee, 2006, p.7-8)
As the Nationalists retreat from Mainland and took over Taiwan from Japanese occupation, the Constitution was brought over and its status was affirmed in Taiwan. But from 1945 to 1987, all checks and balances were suspended through a temporary Constitutional document called the Temporary Provisions against the Communist Rebellion. Chiang Kai-shek, then ROC President and leader of the Nationalist Party, justified nullifying the constitution and practicing martial as necessary wartime measures against the advancements of the Communists’ People’s Liberation Army and for retaking Mainland from the “illicit” Communist regime. (Wang, 2003, p.20-22)
After decades of martial law, oppressive policies and two generations of authoritarian leaders, Taiwan’s democratization process started under Nationalist President Lee Teng-hui, often referred to as the Quiet Revolution for its top-down, peaceful and gradual. Since 1987, it witnessed the abrogation of the Temporary Provisions and first attempts at bringing the key democratic features of the Constitution back in practice, and amendments to reform the constitutional order to better fit the new political reality in Taiwan. (Wang, 2003, p. 32-33)
Seven amendments in total have been made to the Constitution since. For the first time in ROC history, the President, Vice President, the Legislative Yuan were all elected directly by the people of Taiwan, with the electorate defined as the “citizens of the free area of the Republic of China”, as opposed to citizens under the rule of the Communist Regime. And instead of a parliamentary system as the constitution was originally devised, Taiwan now has a semi-presidential system that grants the President the discretion to independently appoint the Premier, thus giving the President resounding authority over the executive branch. The National Assembly, a figurehead assembly originally given sweeping powers to amend the Constitution and elect the President, was abolished and its duties were redelegated to either the Legislative Yuan or popular votes through plebiscites. (Lee, 2006, p.7-8)
After these revisions, the constitution looks like a chimeric combination of the Republic of China of the past and the Taiwan of today. To some, it is the crowning achievement of decades of political pragmatism and incremental change. To others, the Constitution is a glaring anachronism that is holding Taiwan’s democracy back.
Why the authoritarian constitution stereotype does not apply
Both the current and original institutional designs within the Constitution are resoundingly democratic, and past authoritarianism stemmed not from the Constitution, but from a grotesque lack of compliance by informal institutions.
According to one research into post-WWII democratization, 70% of countries that have democratized since then have done so while preserving an authoritarian constitution. If the authoritarian government was established upon said constitution and the elites of the status quo are the ones in charge of any amendment process for liberalization, there are few incentives for a government holding most of the cards to refrain from tilting the rules in their favour once the process wraps up. (Albertus, 2018, p. 63-64)
This phenomenon is characterized as Constitutional Machiavellianism. It ensures that the elites that propped up the previous administration play a disproportionally large role in the new democracy. Tactics include pro-establishment electoral rules, veto powers for special interest groups, continuation of previous economic arrangements, and many others. (Albertus, 2018)
The usual justifications by supporters of asymmetrical designs are presented along the lines of stability, consensus building and safeguarding against populism. That is debatable. An asymmetrical design that produces outcomes that run contrary to the will of the majority of citizens threatens the legitimacy of the constitution itself and hampers confidence in the Constitution. Besides, a system that is bogged down by obstructionism is exactly a functional one at responding to public needs. This rebuttal forms the main argument for constitutional reform in Chile, which has just passed a referendum to completely replace the Pinochet-era constitution with one that is formulated by direct elected representatives rather than former authoritarians from a position of dominance. (Albertus, 2018, p. 63-67)
The ROC Constitution has thankfully averted such anti-democratic caveats due to several historical factors. First, the 1946 draft that the main body of the Constitution is based upon was not written by people in a stabilized authoritarian government per se. For context, the Communists and the Nationalists had little mutual trust for one another and were on the brink of an escalated civil war when the National Political Convention produced the draft. Neither the Communists nor the Nationalists were particularly advantageous during the proceedings since the parties had somewhat comparable support, occupied territories and capabilities, with respective backing from both the Soviet Union and the United States. (Lee, 2006, p.7-8) It is hard to ascertain the true intentions of each party, but negotiations on the Constitution were both a legal and a public relations battle as the parties sought to establish legitimacy and reputation as supporters for liberal democracy both domestically and abroad.
To ensure the impression that the Convention was a genuine effort at negotiation and consultation, Chiang Chia-sen, the former leader of the Democratic Socialist Party, was made the moderator of the Convention. The main disagreements over the Constitution largely concentrated on the specifics of the design rather than an effort to monopolize political powers for either major party. Eventually, both parties made substantial compromises to meet each other in the middle. (Lee, 2006, p.7-8)
The main body of the Constitution looked nothing like something that would be produced by authoritarians, despite that Communists led by Mao Zedong and the Nationalists led by Chiang Kai-shek both opted for full autocracy afterwards. It contained robust checks and balances, a weak central authority, and constitutional guarantees of rights and freedoms.
The Constitution was declared illegal in mainland by the Communists once they took power in 1949, replacing it with one that inaugurated a Soviet-style power arrangement. But in Taiwan, Chiang Kai-shek decided not to abolish, but to freeze the Constitution through a temporary amendment and rule through martial laws after the Nationalists’ retreat. The Constitution based on democratic principles was then still the de jure supreme law in Taiwanese jurisprudence, but simply not complied with. (Wang, 2003, p.19)
This approach of governing through informal institutions while the formal institutions were put on hold by the Nationalist government essentially inoculated the constitution from a rabbit hole of authoritarian degradation, and helped provide the constitutional basis upon which the Quiet Revolution within the Nationalists and the overall democratization process relied on.
Democratic features
And after seven modern amendments, the Constitution of Republic of China is very comparable to the ones of highly advanced democracies, and even going beyond what they have achieved on several fronts.
First, all of the usual civil liberties and civil rights considered universal are present since the very first edition. Equality before the law; protection from unlawful detention; mobility rights; right to work and property, freedom of speech, publishing, academics, correspondence, assembly, protest; right to remedies for human rights violations, and many more, including a clause for residual rights and freedoms and a proportional limitation clause. These rights and freedoms have since been purposively interpreted by the Taiwanese Constitutional Court to convey other rights and freedoms as well, including marriage equality, right to environmental protection, right to privacy and others. (Laws and regulation database, 1947)
Beyond these civil rights and liberties, the ROC Constitution also contains a above average list of economic and social rights. These include right to basic education; right to unionization, employment opportunities, safe working environment, minimum wage, hours limits; protection against child labour; right to affirmative action for disadvantaged groups; right to social security. (Laws and regulation database, 1947) The outstanding feature is these interpretive clauses that can be the basis of judicial reviews of policies and legislations, something that other Asian democracies often do not entertain. (Jung et al., 2014, p. 1069-1071)
In terms of regime classification, Taiwan is a semi-presidential democracy with a strong president. In comparative terms, presidential powers are much less concentrated than in the United States where presidents have a legislative veto that requires 2/3 majorities in both Houses to override. Taiwanese president only has a French style suspensive veto that can force reconsideration but not raise the passing threshold. Hence, the president only has a legislative mandate when they also obtain a majority in the Legislative Yuan. But compared to French semi-presidentialism and parliamentarianism, the president can appoint and dismiss the Prime Minister solely upon their own discretion, thus gaining a stronger administrative mandate than those systems. (Shen, 2011, p.142-144)
One explanation is that having a president with a proper electoral mandate has a symbolic effect on the perception of successful democratization for a new democracy. And to keep the President’s authority within the sweet spot, the President’s powers would not be overly broad without major vested legislative powers within the presidency or de jure direct control over the cabinet like in the United States, nor would they be overly restrictive with a the risk of a coexistence government like in France.
The cornerstone of any true democracy is free and fair elections. Given the expansive list of civil rights, freedoms and social rights, a restrained presidency and robust checks and balances, and various other constitutional safeguards against whimsical constitutional amendments, unfair election rules and political influence in the judiciary among other anti-democratic offences, this is a democratic constitution without authoritarian footnotes.
Ambiguities and conflicts
Simply establishing that the institutions concocted in the Constitution are democratic does not mean that they are not without their demerits. The original body of the Constitution was suspended for decades, and the 7 amendments are brief additions that have failed to clarify many ostensible ambiguities within the original text regarding the powers and duties of branches of government. In other words, notwithstanding the Constitution’s age, its time serving as the foundation of Taiwanese politics in practice has been brief. Taking a constitution formed elsewhere and applying it to Taiwan requires wholesale modifications, otherwise processes are at risk of breaking down.
One example of such dysfunction is the now defunct National Assembly. The first National Assembly was elected in mainland China. Soon afterwards, the Nationalist government retreated to Taiwan. Because the vast majority of the Constitutionally mandated electorate are now under Communist control, and Chiang’s martial law powers are legally temporary, the National Assembly had to postpone its election over and over again still members start to pass away due to old age. This unfortunate situation was ridiculed by Taiwanese people as the “10,000-year National Assembly”. (Lee, 2006, p.10) Several other thorny issues with how the Constitution was drafted are still latent risks today, they include:
1) Indigenous relationship: The original constitution did not take Taiwanese indigenous peoples into consideration when it was being drafted because Taiwan, at that point, was still an occupied Japanese territory. The constitution is then amended to reflect their existence, expanded their representation in the Legislative Yuan, and mandated the central government to facilitate “indigenous autonomous governance”. (Bekhoven, 2019, p. 245)
This has caused an tremendous amount of confusion due to its brevity and equivocation. Unlike the Canada-aboriginal relationships, Taiwan’s colonial history has no treaties to base the government-indigenous relationship on. All prerogatives of determining the status of indigenous people and their rights rest with the government, which is contrary to the United Nations Declaration on the Rights of Indigenous Peoples. All parties have presented different definitions on the term autonomy, and the issues of land disputes, enumerated rights, the scope of autonomy and overlapping jurisdictions make this constitutional clause a deeply disappointing, unfulfilled promise. (Bekhoven, 2019, p. 262-265)
2) The Control Yuan. The Control Yuan was meant to be the government accountability branch in charge of auditing and scrutinizing government activities. In the original text the President of the Control Yuan was an elected official. After the revisions, the Control Yuan is now appointed by the President upon approval from the Legislative Yuan, and is in charge of impeaching government officials.
Due to the ambiguities within the definition of the Control Yuan’s investigative powers, the branch came into frequent conflicts with other branches of government. (Tsai, 2005, p. 144-145) Detractors have also raised concerns about an unelected branch of government impeaching officials without having to go through proper judicial processes. At the current stage, the Control Yuan is either regarded as an overstepping nuisance when it is too aggressive with its investigations, or it is too ineffective when judicial, executive and legislative processes squeeze the Yuan out of the picture. (Lee, 2006, p.14)
3) The President and the Premier. The constitution defines the relationship between the Premier and the Legislative Yuan as responsible government, but the President has the prerogative to appoint and dismiss a premier without the consent from Legislative Yuan, whose only avenue to dismissing a premier through a no confidence vote that immediately causes dissolution. (Tsai, 2005, p. 141) Therefore, the language is self-conflicting. Further clarification is needed for how involved in cabinet affairs the President should be, and what responsible government actually looks like in a system tipping towards presidentialization since there is currently no easy way for the Legislative Yuan to reign in the cabinet.
All of these small defects within the Constitution can be fixed through further amendments in a timely manner without having to draft a new Constitution. The trouble, nevertheless, does not stop here.
ROC vs. Taiwan : a bright red ticking time bomb
A Constitution is not just a rigid legal document. It in itself is a declaration of what a country strives for and what they want to be. Yet, the Constitution of the Republic of China is exactly what the name suggests: it is a constitution meant for the entire Republic of China, which does not see Taiwan as a sovereign nation, considers the current central government in Taipei the only legitimate government of all of China, and does not relinquish its territorial claim over mainland. Large chunks of the Constitution, although not enforced, still only concern mainland China. Even the amendments intended to localize the Constitution to fit Taiwan’s needs are styled as temporary additional clauses and appendixes that will stay in effect until the Republic of China reclaims its former territories.
To call those aspirations elusive would be an understatement. For a government on an island of 23 million to take on the government of 1.5 billion and the world’s second most expensive armed forces would be a suicide mission, barring unexpected tectonic shifts in mainland politics. And given the trends in how the Taiwanese people identify themselves, identifying as a part of China is now a declining minority. (Dreyer, et al., 2007) A constitution not drafted in Taiwan and imposed on the local population by elites from mainland is not ideal, and its legitimacy would be continuously challenged on that ground regardless of how well the adaptation efforts have gone. Should support for independence grows, the discontent with and lack of confidence in the constitution would be at risk of spilling over to the established constitutional order, diminishing public trust in all political institutions, leaving less and less room for the Constitution to stay ambiguous in between tow colliding forces.
Beyond the moral argument and the issue of public opinion, the Constitution’s mutual exclusivity with the People’s Republic of China also presents severe challenges in foreign policy, costing the island valuable opportunities of international representation and diplomatic relations.
On the other hand, when analyzing the state of democracy in Taiwan, the largest and most pressing threat is always Beijing. And that means any proposals to reaffirm Taiwanese or Republic of China sovereignty would have to be a balancing act. Any amendments to remove mentions of mainland from Taiwan’s Constitution or to change the name of the country can be taken by mainland China and the United States as unilateral move to independence and severe provocation. The prospect of Communist invasion, occupation and governance would be the complete demise of democracy in Taiwan.
Conclusion
Given the circumstances, keeping the ROC Constitution is the only realistic option to avoid direct military conflict with mainland and reduce their risk to the democratic way of life in Taiwan. Thankfully, the ROC Constitution in itself is an adequate constitutional document with prominent democratic institutions and safeguards. The operations of the constitutional system are overall stable.
Having seen the kinds of democratic arrangements between autocrats and democrats elsewhere in the world, the ROC Constitution performs appropriately regarding fairness, human rights, checks and balances, and overall execution. Small defects persist, and further changes are needed to adapt the constitution better to suit local political needs, but the current model of paving over the cracks with amendments and Judicial Yuan interpretations has been sufficient to resolve domestic constitutional disputes beyond the issue of independence.
Works Cited
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