Written by Ming-sung Kuo

In modern Chinese history, 10th October 1911 is a landmark.  It is to that historical day that the birth of the first democratic republic in Asia, the Republic of China (ROC, 1912-49) dates back.  On that glorious day, the Wuchang Uprising laid the foundations for the establishment of ROC on 1 January, 1912 in the place of the (Manchurian/ Chinese) Qing Empire.  That was what I learnt from my textbooks as a pupil in Taiwan some time ago and remains what all Taiwanese are told. It is a good day to read into the state of the constitution in Taiwan.

Is Double Ten Day Taiwan’s National Day? Or rather, does Taiwan have its own national day? When the ROC was declared in 1912, Taiwan was an overseas territory of the Japanese Empire as a result of the 1895 Treaty of Shimonoseki between Japan and the Qing Empire. As part of the Allies’ post-WWII transitional arrangement, the Allied Powers militarily occupied Taiwan after Japan’s unconditional surrender. Generalissimo Chiang Kai-Shek and his representatives were entrusted with the occupation of Taiwan, northern Vietnam and other islands. In spite of the law of belligerent occupation, Chiang acted beyond his mandate and governed Taiwan as a province of China before Taiwan’s legal status could have been settled. Taiwanese were given a national day to celebrate even if Taiwan never saw her own nation-awakening uprising or declaration of independence. Double Ten Day has since become Taiwan’s nominal national day.

The history of celebrating a nominal national day is also a constitutional tragicomedy to Taiwanese. ROC’s Weimar-inspired 1946 Constitution was imposed in Taiwan in 1947 when it went into effect in China. Yet, this Constitution was rendered nominal before long.  Instead, a dictatorship regime was constitutionalized with the enactment of Temporary Provisions in 1948, effectively suspending the normative 1946 Constitution. Taiwan was thereafter placed under a constitutional dictatorship for over four decades until 1991. In less than two years, Taiwan underwent all the three ideal types of constitution in the German émigré Karl Loewenstein’s constitutional typology: normative, nominal, and semantic. When the imposed ROC Constitution went into effect, it was a constitution only in the nominal sense as most of its normative contents were never carried out. Notably, the gap between constitutional text and political practice was overcome with Temporary Provisions in the place of the normative 1946 Constitution. However, their implementation resulted in no constitutionalism, but instead in an anti-constitutionalist political order. In this way, Taiwan’s post-1948 constitutional order degenerated to what Loewenstein called ‘semantic’.  Taiwan amounted to a sui generis case — an imposed political regime underpinned by a semantic constitution with a nominal national day — until the political reforms in the late 1980s.

Undergoing a winding process of democratization, Taiwan’s semantic constitution was eventually transformed into a normative order in the 1990s.  Temporary Provisions were repealed in 1991.  The original 1946 Constitution was further modernized with a series of amendments to refit this imposed political order into the island nation of Taiwan.  Despite continuing to celebrate the nominal national day on 10 October, Taiwanese gave normative significance to the Constitution, thereby incubating a nascent sense of political identity. In the hands of an activist constitutional court, the post-1991 Constitution was not just a political document but also impacted on the political life of Taiwan.

Nevertheless, Taiwan’s post-1991 normative Constitution has been faced with an existential crisis from within and without. On one hand, since its last amendment in 2005, the post-1991 Constitution has been in a permanent impasse of its own making. The 2005 constitutional revision was expected to fundamentally change Taiwan’s constitutional identity as the original amendment procedure was replaced by Additional Article (Amendment) 12 of the Constitution. At the heart of the 2005 constitutional reform was the requirement of national referenda in future constitutional revision. This would have had tremendous impact on Taiwan’s constitutional politics. For one thing, the abolition of the National Assembly, which used to have the final say on the approval of constitutional amendments, indirectly recognizes Taiwanese popular sovereignty, suggesting the possible transformation of an imposed constitution into a symbol of political identity. A strong constitutional patriotism would be expected to result from future constitutional revision through the referendum processes, thereby forming a Taiwanese political identity. Alarmed by the implications of popular sovereignty, however, China sent out strong signals amidst the 2005 revision, threatening to take all necessary measures to prevent Taiwan from moving further away from it through constitutional revision.

Yet, the effect of the 2005 constitutional revision seems to have been the opposite, having resulted in Taiwan’s constitutional stalemate ever since. According to Article 12, a constitutional amendment must be ‘initiated upon the proposal of one-fourth of the total members of the Legislative Yuan, passed by at least three-fourths of the members present at a meeting attended by at least three-fourths of the total members of the Legislative Yuan’. Moreover, the approval of the proposed amendment requires ‘a referendum held upon expiration of a six-month period of public announcement of the proposal, wherein the number of valid votes in favour exceeds one-half of the total number of electors [in Taiwan]’. Given the political landscape divided between two main parties (the pro-China KMT and the independence-leaning Democratic Progressive Party (DPP)), this procedural requirement has effectively made any constitutional reform a mission impossible.

Granted, this high threshold for constitutional revision helps to steady the constitutional order. Nevertheless, if the constitutional order such a cumbersome amendment procedure is designed to steady is defective and requires repair, the aforementioned procedural provision would disable the constitution’s self-correcting capacity.  Unfortunately, as has been played out later in a series of high political dramas, the design of checks and balances in the post-1991 Constitution is flawed. As a result of the high threshold for constitutional revision, the constitutional system’s self-correcting capacity has been entirely dysfunctional. Contrary to the framers’ intent, Taiwan’s post-2005 constitutional order has not only failed to cultivate the expected political identity by virtue of referenda on constitutional amendments but also weakened the normative force of the Constitution with political reality moving away from constitutional norms.

In the face of the blocked amendment process, the convocation of a constituent assembly to enact a new constitution may be the way out. Yet, as an act of constitution-making is associated with the exercise of popular sovereignty, China has been adamant on drawing a red line on Taiwan’s constitutional reform. China would treat any reform attempt, which it judges as evoking the idea of pouvoir constituant, as a prelude to making Taiwan’s independence de jure. In the shadow of China’s threat from without, the path towards further constitutional reform by passing a new constitution is also de facto blocked. Under China’s threat, Taiwanese have seemed resigned to forfeit their right to give themselves a new constitution that would take them out of the current impasse. As a whole, the inbuilt flaw of the amendment procedure and the external threat from China contribute to widening the gap between constitutional law and practice, threatening to render the constitution nominal again.

The China factor has further driven Taiwan’s move towards a nominal constitution. Following the KMT’s China-friendly policies and driven by the policy of establishing the political union of Taiwan and China, President Ma Ying-Jeou’s administration has speedily signed and ratified dozens of agreements with China since 2008, including a quasi free trade agreement (Economic Cooperation Framework Agreement) and the controversial service trade agreement (the latter was recently signed but remains yet to clear the legislative process). Notably, the wide-reaching bilateral agreements between China and Taiwan have been formed in a procedure that is deliberately designed to make these agreements appear ‘private’, escaping public scrutiny. More concerning to constitutional scholars however, is that at China’s insistence and with President Ma’s acquiescence, these bilateral agreements have been ratified with little legislative oversight to avert any implications of sovereignty from the parliamentary involvement in external, or, rather, foreign affairs. As the ever closer economic ties between China and Taiwan continue to grow and move to centre stage in Taiwan’s policy decisions, the ‘privatization’ of the bilateral relations has posed an existential crisis to Taiwan’s constitutional order. In terms of the increasing importance of the Taiwan-China bilateral relations in Taiwan’s political life, taking those bilateral agreements out of the legislative control not only renders Taiwan’s constitutional check and balance toothless.  Moreover, the increasing China factor is step by step displacing the Constitution from more and more policy decisions with the undermining of the parliamentary control, turning Taiwan’s Constitution into a nominal one again.

Taiwan has come a long way in her constitutional struggle. At the outset, Taiwan’s constitutional order was centred on an externally imposed nominal constitution. With the great effort of the Taiwanese people, the constitutional order was eventually transformed into a normative one, leading to the realization of constitutional democracy in Taiwan. Yet, this is not the final act of Taiwan’s constitutional tragicomedy. The provision of referenda in the 2005 reform has inadvertently suffocated Taiwan’s constitutional reform. Worse, in the long shadow of a rising China, constitutional norms and political practice are little by little drifting apart in Taiwan. Will the Constitution become nominal again? Only Taiwanese know the answer. We, the Taiwanese people continue to celebrate the nominal national day without tackling the question only at our own peril.

Ming-sung Kuo is Assistant Professor, School of Law, University of Warwick