Johns Hopkins Undergraduate Law Review

June 12th 2024 | Brian Duan

Edited by Jill Ji

The key issues of the 2024 Taiwanese presidential election echoed those of past elections: defining Taiwan’s de jure status and navigating ways to maintain Taiwan’s de facto independence vis-à-vis the People’s Republic of China (PRC). The candidate of the ruling Democratic Progressive Party (DPP), Lai Ching Te, has frequently branded himself as a ‘pragmatic worker for Taiwan Independence’ and promotes a cross-strait policy reflecting the principle of ‘mutual non-subordination’, which asserts that ‘neither side of the Taiwan Strait (Taiwan and the PRC) is subordinate to the other’ [1]. This stance was most evident when Mr. Lai criticized the Republic of China (ROC) Constitution –– the current supreme law of Taiwan –– for ‘impeding democratic progress’ [2]. Mr. Lai argued for a new constitution ‘tailored specifically to Taiwan’s needs and realities,’ raising three concerns: first, the ROC Constitution was ‘originally designed for China, not Taiwan’; second, it has continually faced ‘practical implementation problems’; and third, its foundation in Chinese ideology ‘conflicts with Taiwan’s collective identity’ [3]. Recently, Mr. Lai has softened his stance, claiming that Taiwan ‘does not need to officially declare independence separately’ through a new constitution. However, Mr. Lai’s past pro-independence advocacy reignited debates about Taiwan’s constitutional status and the inconsistency between the ‘mutual non-subordination’ principle and the ROC constitutional framework [4]. In 2023, two Taiwanese NGOs called to initiate a referendum to adopt a new constitution [5]. However, questions linger about whether a new constitution is the key to resolving cross-strait issues, the extent to which the current constitution deviates from Taiwan’s realities, and whether there is a genuine ‘consensus’ amongst Taiwanese people to form a new constitution. 

The controversy surrounding Taiwan’s constitution stems from its unique historical context, leading to inconsistencies between its de jure provisions and Taiwan’s de facto realities. The ROC Constitution was enacted in 1947 in China by Kuomintang’s (KMT) government, before its relocation to Taiwan and the foundation of the CCP-led PRC, the current UN-acknowledged representation of China [6]. Although the constitution was developed based on China’s politics, society, economy, and geography, the ROC Constitution has been exclusively in force in Taiwan, Penghu, Kinmen, and Matsu since 1949. This kind of ‘transplanted constitution’ has almost no precedent. Not surprisingly, the ROC Constitution contradicts Taiwan’s political and socio-cultural context. Main examples include the ongoing de jure territorial claims over Mainland China and the legal autonomy of the ‘Mongol Province’ [7]. However, from a pragmatic perspective, Taiwan should preserve the ROC Constitution, given its existing amendments and constitutional norms, the legal stability and continuity it offers amidst the absence of a national consensus for a new constitution, and its role in preserving the status quo across the Taiwan Strait. 

First, the government has enacted amendments in Taiwan and adopted unwritten constitutional norms, enhancing the consistency of the ROC Constitution with Taiwan. In 1987, the ROC government lifted the Martial Law in Taiwan, stimulating democratization and indigenization [8]. In 1990, students initiated the Wild Lily movement to advocate ‘democratic governance and parliamentary re-elections’ [9]. In response, from 1991 to 2005, the National Assembly commissioned the ‘Additional Articles of the ROC Constitution’ to ‘meet the requisites of the nation prior to national unification’ [10]. Before the amendment, the ROC government was ruled by an ‘eternal parliament’, in which old representatives from Chinese provinces governed Taiwan because new elections were ‘impossible’ without the participation of provinces under Communist control [11]. Therefore, the seven amendments defined the ‘Free Area’ as the territory and the people under the ROC government’s effective jurisdiction, and only residents of the Free Area are entitled to exercise their rights [12]. This definition permitted other amendments to grant full autonomy to the Taiwanese people. Since 1987, the government enacted several amendments that contributed to democratization: 

• 1991 Amendment: Led to the first general election of the legislature in Taiwan and established a formal legal framework for cross-strait relations [13].
• 1994 Amendment: Granted Taiwanese people the right to elect their president [14].
• 1997 Amendment: Adopted the current semi-presidential system [15]. 
• 2005 Amendment: Abolished the National Assembly, made the Legislative Yuan a unicameral legislature, and changed the electoral system to a mixed-member majoritarian system [16].

These amendments were implemented without revoking the constitution, achieving normalization through constitutional evolution rather than revolution, which ensured constitutional stability. 

Apart from constitutional amendments, legal scholar Lin Chien Chih argues through Christopher Jones’s concept of ‘constitutional idolatry’ –– which refers to the ‘drastic or persistent overselling of the importance and effects of written constitutions’ –– that unwritten constitutional norms have ‘effectively replaced some constitutional provisions’ [17]. These norms have become a ‘key part of Taiwan’s constitutional identity’, hence creating constitutional changes without destabilization [18]. For example, despite the 1994 amendment designating the President of the Executive Yuan as the head of government, Taiwan functions under a presidential system ‘due to a combination of party politics and electoral politics’ [19]. Additionally, whilst the 1990 constitutional amendments created the concept of a ‘Free Area’ according to the notions of One China, the majority of Taiwanese identify themselves as ‘Taiwanese’ [20]. The incorporation of norms reflects what Richard Albert calls ‘constitutional desuetude’, which occurs when a ‘constitutional provision loses its binding force upon political actors as a result of its conscious sustained nonuse and public repudiation by political actors’ [21]. The importance attached to norms diminishes the need for a new constitution if these concepts are already adopted as the de facto constitutional practice. 

However, some argue that the constitution still contains problems that have not been addressed by amendments or norms. For example, the arrangement of the government into five branches as opposed to having only three branches leads to dysfunction in the system of checks and balances [22]. Moreover, the amended articles explicitly use the term ‘national unification’, which does not reflect the prevailing identification of ‘Taiwanese’. However, the political parties in Taiwan have promised future commitments to constitutional reforms, illustrating the possibility of resolving these issues within the current constitution [23]. Although ‘national unification’ is still coded in the constitution, no ruling political parties in Taiwan have pursued this policy in contravention of the constitutional norms, as previously emphasized. In other words, due to existing and potential amendments and the prevailing role of constitutional norms, the ROC Constitution has already become compatible with Taiwan, thus a new constitution would not be necessary.  

Second, the ROC Constitution offers constitutional stability amidst the absence of a national consensus for a new constitution. Taiwan’s historical stability and advancement as a liberal democracy could be attributed to the ROC Constitution. Although the Constitution was originally designed for China, the principles embedded in the Constitution have played a significant role in advancing Taiwan’s human rights and democratic values. Both the government and activists have invoked articles from the ROC Constitution to support their cause. For example, Taiwan’s legalization of same-sex marriage, the first country to do so in Asia, was based on Judicial Yuan’s Constitutional Interpretation Number 748 [24]. It declared that the Civil Code’s failure to allow same-sex couples to establish a ‘permanent, intimate, and exclusive union’ violated Articles 7 and 22 of the ROC Constitution, which guarantee equality and the freedom of marriage [25]. Consequently, the government was mandated to enact the Act for Implementation of Judicial Yuan Interpretation No 748, which officially recognized same-sex marriage [26]. Similarly, Articles 7 to 21 function as Taiwan’s ‘Bill of Rights’, whilst Article 22 significantly extends this protection by guaranteeing ‘all other freedoms that are not detrimental to social order or public welfare’ [27]. This comprehensive constitutional framework lays a foundation for the globally recognized development of human rights in Taiwan. Apart from human rights protection, the codified separation of power, power of judicial review granted to the judiciary, and the explicit presidential term limit have contributed to Taiwan’s political stability [28]. 

If Taiwan were to draft a new constitution that is fully consistent with Taiwan’s socio-political realities in both de jure and de facto senses, to what extent do the people share a consensus? Without such a consensus, could this process disrupt Taiwan’s current constitutional stability? Most calls for a new constitution in Taiwan focus on the issue that could not be addressed with a constitutional amendment: the definition of Taiwan’s sovereignty and the notion of One China. Pro-independence groups have been pushing for a referendum, which would ask the voters if they support the president in ‘establishing a new constitution that reflects Taiwan’s current realities’ [29]. The move was justified by data showing that 83% of people in Taiwan identified themselves as Taiwanese rather than Chinese in 2020, a significant 13% increase from three decades ago [30]. However, the opposition Kuomintang has expressed concerns about pursuing a new constitution, which is generally perceived as provocative towards China [31]. Moreover, despite the percentage of people identifying themselves as Taiwanese, most Taiwanese are reportedly hesitant to instigate a conflict with China, leading to reluctance towards a new constitution [32]. The historically pro-independence DPP has also softened its stance, claiming its pragmatic priority in ‘maintaining the status quo’ [33]. In other words, as the ROC Constitution has been instrumental in maintaining Taiwan’s political stability, creating a new one in the absence of a strong, universal consensus would only undermine Taiwan’s legal order. Throughout history, numerous international instances have demonstrated that the establishment of a new constitution without widespread consensus often precipitates instability.

Lastly, and most importantly, the ROC Constitution preserves peace and the status quo across the Taiwan Strait. The ROC Constitution had served as a framework for dialogue and peace. Based on the ROC Constitution, the relationship between Taiwan and the PRC is a ‘special relationship between two areas within one state’, according to President Ma Ying Jeou [34]. Whilst the governing authority in one area would not recognize the authority in the other area as a de jure legitimate government, it also does not dispute that the other side is the de facto governing authority in a specific area of the state [35]. This framework helped ease tension and provided the foundation for dialogue, such as the meeting between Mr. Ma and Xi Jinping in Singapore. The PRC has also reiterated its firm opposition to Taiwan’s Independence and maintained a policy of ‘not renouncing the right to use force over Taiwan’ [36]. However, some might argue that recognizing Taiwan and the PRC as one state is not sensible as most Taiwanese recognize Taiwan and the PRC as separate entities. Nevertheless, the de facto and the de jure cannot be mixed up. The constitutional principle only provides a de jure framework for handling cross-strait relations and would not alter the de facto independence of Taiwan due to the constitutional norms opposing this move. In fact, adhering to this principle might help sustain peace across the strait and minimize the possibility of a Chinese invasion. 

Furthermore, pro-independence groups have contended that a Taiwan-specific constitution would translate into international recognition by breaking away from the One China framework as outlined in Resolution 2758 [37]. However, contrary to their argument, the prospect of international support for a new constitution remains largely uncertain. The US and its allies have affirmed their stance in preventing both sides from unitarily changing the status quo and have denounced declaring Taiwan’s independence. A new Taiwan-specific constitution would most likely be perceived as a declaration of Taiwan independence, which would alter the political status quo and provoke the PRC. Michael Green, a former staff member of the US National Security Council, acknowledges that whilst there are indeed ‘peculiar aspects of the ROC Constitution that may warrant revisions’, any move to change it should not be politically driven [38]. Mr. Green warns that amending the constitution could ‘potentially weaken support for Taiwan from countries like the U.S. and Japan’ and advises that Taiwan refrains from ‘symbolic gestures that might have unintended consequences’ [39].
In conclusion, Taiwan should keep the ROC Constitution, due to its existing Taiwan-specific amendments and constitutional norms, the legal stability and continuity it offers amidst the absence of a national consensus for a new constitution, and its role in preserving the status quo across the Taiwan Strait. However, constitutional reforms within the current constitutional framework, as many have argued, are indeed needed as Taiwan’s democracy matures. Nevertheless, despite its anomalies, the ROC Constitution has and will continue to be Taiwan’s most important backbone.

Notes:

[1] John Tkacik, “John J. Tkacik, Jr.. on Taiwan: Sovereign, Independent and Mutually Non-Subordinate,” Taipei Times, April 15, 2018, https://www.taipeitimes.com/News/editorials/archives/2018/04/16/2003691393.

[2] Yufu Chen, “中華民國憲法三大問題 賴清德：影響台灣團結. [Three Major Issues in the Constitution of the Republic of China Lai Ching-te: Affecting Taiwan’s Unity]” The Liberty Times, January 23, 2019. https://news.ltn.com.tw/news/politics/breakingnews/2680461.

[3]  Ibid.

[4] John Tkacik, “John J. Tkacik, Jr.. on Taiwan: Sovereign, Independent and Mutually Non-Subordinate,” Taipei Times, April 15, 2018, https://www.taipeitimes.com/News/editorials/archives/2018/04/16/2003691393.

[5] Joyce Huang and Lin Yang, “Taiwan Pro-Independence Group Calls for Drafting of New Constitution,” Voice of America, April 30, 2020, https://www.voanews.com/a/east-asia-pacific_taiwan-pro-independence-group-calls-drafting-new-constitution/6188449.html.

[6] “Constitution of the Republic of China (Taiwan).” Office of the President of the Republic of China. Accessed January 16, 2024. https://english.president.gov.tw/page/93.

[7] Constitution of the Republic of China ch. I, art. 4.; Constitution of the Republic of China, ch. XI, § 1, art. 119.

[8] Ming-sho Ho, “Understanding the Trajectory of Social Movements in Taiwan (1980–2010),” Journal of Current Chinese Affairs 39, no. 3 (2010): 3–22, https://doi.org/10.1177/186810261003900301.

[9]  Ibid.

[10] Preface to the Additional Articles of the Constitution of the Republic of China.

[11] “Taiwan Assembly Passes Changes,” BBC News, June 7, 2005, http://news.bbc.co.uk/2/hi/asia-pacific/4616043.stm.

[12] Additional Articles of the Constitution of the Republic of China art. 1.

[13] Additional Articles of the Constitution of the Republic of China art. 1.

[14] Additional Articles of the Constitution of the Republic of China art. 2.

[15] Additional Articles of the Constitution of the Republic of China art. 3.

[16] Additional Articles of the Constitution of the Republic of China art. 4.

[17] William Brown, “Book Review: Constitutional Idolatry and Democracy: Challenging the Infatuation with Writtenness by Brian Christopher Jones,” LSE Review of Books, November 17, 2021, https://blogs.lse.ac.uk/lsereviewofbooks/2021/11/16/book-review-constitutional-idolatry-and-democracy-challenging-the-infatuation-with-writtenness-by-brian-christopher-jones/#:~:text=In%20Constitutional%20Idolatry%20and%20Democracy%3A,Brown.

[18] Chien-Chih Lin, “Believe in the Ideal, Not the Idol: Is Constitutional Idolatry Happening in Taiwan?,” International Association of Constitutional Law, January 12, 2021, https://blog-iacl-aidc.org/cili/2021/1/12/believe-in-the-ideal-not-the-idol-is-constitutional-idolatry-happening-in-taiwan.

[19] Ibid.

[20] Ibid.

[21] Richard Albert, “Constitutional Amendment by Constitutional Desuetude,” American Journal of Comparative Law 62, no. 3 (2014): 641–86, https://doi.org/10.5131/ajcl.2014.0018.

[22] Ya-chi Hsu, “From Five to Three Branches of Government,” Taipei Times, February 13, 2017, https://www.taipeitimes.com/News/editorials/archives/2017/02/14/2003664936.

[23] Hsiao-kuang Shih, “KMT to Propose Constitutional Amendments: Chiang,” Taipei Times, July 29, 2020, https://www.taipeitimes.com/News/taiwan/archives/2020/07/30/2003740824.

[24] Judicial Yuan Interpretation No. 748 (Republic of China).

[25] Ibid.

[26] Ibid.

[27] Constitution of the Republic of China ch. II

[28] Chien-Chih Lin, “Believe in the Ideal, Not the Idol: Is Constitutional Idolatry Happening in Taiwan?,” International Association of Constitutional Law, January 12, 2021, https://blog-iacl-aidc.org/cili/2021/1/12/believe-in-the-ideal-not-the-idol-is-constitutional-idolatry-happening-in-taiwan.

[29] Joyce Huang and Lin Yang, “Taiwan Pro-Independence Group Calls for Drafting of New Constitution,” Voice of America, April 30, 2020, https://www.voanews.com/a/east-asia-pacific_taiwan-pro-independence-group-calls-drafting-new-constitution/6188449.html.

[30] Mark Green, “Majority in Taiwan No Longer Say They’re Chinese,” Wilson Centre, May 9, 2023, https://www.wilsoncenter.org/blog-post/majority-taiwan-no-longer-say-theyre-chinese.

[31] “The ROC Constitution: Sense, Caution,” Taipei Times, May 5, 2021, https://www.taipeitimes.com/News/editorials/archives/2021/05/06/2003756919#:~:text=It%20is%20within%20this%20context,the%20ROC%20no%20longer%20exists.

[32] Mark Green, “Majority in Taiwan No Longer Say They’re Chinese,” Wilson Centre, May 9, 2023, https://www.wilsoncenter.org/blog-post/majority-taiwan-no-longer-say-theyre-chinese.

[33] Joyu Wang, Lai Ching-Te’s resolve has taken on outsize significance since his …, January 17, 2024, https://www.wsj.com/world/asia/taiwans-new-leader-says-hell-stick-to-the-status-quobut-his-past-makes-the-u-s-nervous-689ffaff.

[34] “Ma Clarifies ‘Two Areas,’ Reaffirms Non-Denial,” Central News Agency, October 25, 2008, http://www.chinapost.com.tw/taiwan/china-taiwan-relations/2008/10/25/180363/Ma-clarifies.htm.

[35] Ibid.

[36] Yew Lun Tian, “China Will Never Renounce Right to Use Force over Taiwan, Xi Says,” Reuters, October 16, 2022, https://www.reuters.com/world/china/xi-china-will-never-renounce-right-use-force-over-taiwan-2022-10-16/.

[37] Joyce Huang and Lin Yang, “Taiwan Pro-Independence Group Calls for Drafting of New Constitution,” Voice of America, April 30, 2020, https://www.voanews.com/a/east-asia-pacific_taiwan-pro-independence-group-calls-drafting-new-constitution/6188449.html.

[38] Yonhong Huang, “台灣獨派要「制憲」[Taiwan’s Independence Faction Wants to ‘Form a Constitution’],” Lianhe Zaobao, January 28, 2019, https://www.thinkhk.com/article/2019-01/28/32670.html.

[39] Ibid.

Sources:

Albert, Richard. “Constitutional Amendment by Constitutional Desuetude.” American Journal of Comparative Law 62, no. 3 (2014): 641–86. https://doi.org/10.5131/ajcl.2014.0018. 

Brown, William. “Book Review: Constitutional Idolatry and Democracy: Challenging the Infatuation with Writtenness by Brian Christopher Jones.” LSE Review of Books, November 17, 2021. https://blogs.lse.ac.uk/lsereviewofbooks/2021/11/16/book-review-constitutional-idolatry-and-democracy-challenging-the-infatuation-with-writtenness-by-brian-christopher-jones/#:~:text=In%20Constitutional%20Idolatry%20and%20Democracy%3A,Brown. 

Chen, Yufu. “中華民國憲法三大問題 賴清德：影響台灣團結. [Three Major Issues in the Constitution of the Republic of China Lai Ching-te: Affecting Taiwan’s Unity.]” The Liberty Times, January 23, 2019. https://news.ltn.com.tw/news/politics/breakingnews/2680461. 

“Constitution of the Republic of China (Taiwan).” Office of the President of the Republic of China. Accessed January 16, 2024. https://english.president.gov.tw/page/93. 

Green, Mark. “Majority in Taiwan No Longer Say They’re Chinese.” Wilson Centre, May 9, 2023. https://www.wilsoncenter.org/blog-post/majority-taiwan-no-longer-say-theyre-chinese. 

Ho, Ming-sho. “Understanding the Trajectory of Social Movements in Taiwan (1980–2010).” Journal of Current Chinese Affairs 39, no. 3 (2010): 3–22. https://doi.org/10.1177/186810261003900301. 

Hsu , Ya-chi. “From Five to Three Branches of Government.” Taipei Times, February 13, 2017. https://www.taipeitimes.com/News/editorials/archives/2017/02/14/2003664936. 

Huang, Joyce, and Lin Yang. “Taiwan Pro-Independence Group Calls for Drafting of New Constitution.” Voice of America, April 30, 2020. https://www.voanews.com/a/east-asia-pacific_taiwan-pro-independence-group-calls-drafting-new-constitution/6188449.html. 

Huang, Joyce, and Lin Yang. “Taiwan Pro-Independence Group Calls for Drafting of New Constitution.” Voice of America, April 30, 2020. https://www.voanews.com/a/east-asia-pacific_taiwan-pro-independence-group-calls-drafting-new-constitution/6188449.html. 

Huang, Yonhong. “台灣獨派要「制憲」[Taiwan’s Independence Faction Wants to ‘Form a Constitution’].” Lianhe Zaobao, January 28, 2019. https://www.thinkhk.com/article/2019-01/28/32670.html. 

Lin, Chien-Chih. “Believe in the Ideal, Not the Idol: Is Constitutional Idolatry Happening in Taiwan?” International Association of Constitutional Law, January 12, 2021. https://blog-iacl-aidc.org/cili/2021/1/12/believe-in-the-ideal-not-the-idol-is-constitutional-idolatry-happening-in-taiwan. 

“Ma Clarifies ‘Two Areas,’ Reaffirms Non-Denial.” Central News Agency, October 25, 2008. http://www.chinapost.com.tw/taiwan/china-taiwan-relations/2008/10/25/180363/Ma-clarifies.htm. 

“The ROC Constitution: Sense, Caution.” Taipei Times, May 5, 2021. https://www.taipeitimes.com/News/editorials/archives/2021/05/06/2003756919#:~:text=It%20is%20within%20this%20context,the%20ROC%20no%20longer%20exists. 

Shih , Hsiao-kuang. “KMT to Propose Constitutional Amendments: Chiang.” Taipei Times, July 29, 2020. https://www.taipeitimes.com/News/taiwan/archives/2020/07/30/2003740824. 

“Taiwan Assembly Passes Changes.” BBC News, June 7, 2005. http://news.bbc.co.uk/2/hi/asia-pacific/4616043.stm. 

Tian, Yew Lun. “China Will Never Renounce Right to Use Force over Taiwan, Xi Says.” Reuters, October 16, 2022. https://www.reuters.com/world/china/xi-china-will-never-renounce-right-use-force-over-taiwan-2022-10-16/. 

Tkacik, John. “John J. Tkacik, Jr.. on Taiwan: Sovereign, Independent and Mutually Non-Subordinate.” Taipei Times, April 15, 2018. https://www.taipeitimes.com/News/editorials/archives/2018/04/16/2003691393. 

Wang, Joyu. Lai Ching-Te’s resolve has taken on outsize significance since his …, January 17, 2024. https://www.wsj.com/world/asia/taiwans-new-leader-says-hell-stick-to-the-status-quobut-his-past-makes-the-u-s-nervous-689ffaff.