08.24.06
Constitutional change and independence
This is a reference post I’ve been meaning to write for some while.
Taiwan’s Constitution is a mess. As someone who strongly supports the idea of further reform, I get frustrated by the knee-jerk “Constitutional reform equals a move towards independence” reaction which usually drowns out any serious discussion. Clearly though, there are areas of the constitution which, if changed, would signal a move towards independence - so it’s worthwhile to have a proper look, and identify what the constitution actually says about China and Taiwan.
For reference, the original Constitution is available here, while the amendments are here.
What’s not in the Constitution
An important first point: The national boundaries of the Republic of China are not defined by the constitution.
The constitution defines how to change the boundaries - but not what those boundaries are. In fact, these rules were changed in last year’s constitutional reform with hardly a comment from China, pro-Independence or pro-Unification advocates, which shows how uncontencious this is.
It should also be mentioned that the territory of the ROC has never been altered - which leads to the slightly embarassing fact that Taiwan is officially not part of ROC territory, while Mongolia (and bits of Russia and Burma) are.
Other issues which aren’t covered by the constitution include the national anthem and the capital (which is still officially Nanjing).
Symbolic Changes
The biggest possible issues in the Constitution relating to independence are purely symbolic. In particular:
- The name of the country. Changing the name from “The Republic of China” would of course be a major step, which I’ve written about before. Note that the ‘Republic of China’ is mentioned a total of 17 times in the original constitution, and another 11 times in the ammendments - making it a messy thing to change with ammendments (as opposed to a completely new constitution). Anyone intent on expunging anything Chinese from the constitution would also have to take care of the three references to ‘overseas Chinese’ in the original constitution.
- Article 6 defines what the national flag is. This is another (less explicit) link to the past - and so to China. It’s also a link to the KMT, which causes some angst in democratic circles.
- Sun Yat Sen’s ‘three principles of the people’ are defined in Article 1 of the Constitution as the basis for the ROC. Clearly the link to the ‘Father of modern China’ has important symbolism. The actual content of the three principles is less important (aside from the fact that the details are a load of discredited junk, they don’t really touch on the Taiwan-China question).
- The Constitution itself. A heavily ammended constitution still has links to the original document written in China in 1946 - a completely new constitution wouldn’t have that link.
Clearly, a change to any one of these four issues would upset China enormously, without changing the way Taiwan is governed one iota. However, given the strict rules on constitutional ammendment there is zero chance of any of these happening - whoever controls the Legislature.
Practical changes
There are also some substansive areas of the constitution whose change would be controversial:
- The preamble to the ammendments reads “To meet the requisites of the nation prior to national unification, the following articles of the ROC Constitution are added or amended to the ROC Constitution…”. Obviously, this implies that unification is a goal of the ROC. Changing this to be conditional (i.e. ‘If unification occurs, these ammendments cease to apply’) or removing it completely would be a step away from unification.
- The ammendments introduce the concept of the “free area of the Republic of China” to describe the area of effective control of the ROC. All national elections refer to electors in the free area. However, there is no mention as to how or where this ‘free area’ is defined. Given that this is a pretty practical way of allowing democratic elections in Taiwan it’s unlikely that anyone could change this.
- Article 11 of the ammendments: “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.” This is the only area of the constitution which explicitly talks about mainland China.
- Although the two remainging provincial governments (Taiwan and Fujian) are virtually powerless, the amended constitution still has several articles defining their powers. There have been calls to completely remove the provincial government - from both sides of the political spectrum in Taiwan.
- Article 9 of the ammendments explicitly mentions Taiwan’s provincial government: “The modifications of the functions, operations, and organization of the Taiwan Provincial Government may be specified by law.” This is the only place where Taiwan is mentioned in the whole constitution.
- Bizarelly, two articles from the original constitution which haven’t been removed are these:
Article 119
The local self-government system of the Mongolian Leagues and Banners shall be prescribed by law.
Article 120
The system of self-government in Tibet shall be safeguarded. - Another two Articles which, against all logic, are still on the books are articles 168 & 169 - which deal with legal protection for ‘the various ethnic groups in the frontier regions’. Removing explicit protection for the Uyghurs in Xinjiang would have little effect on day-to-day government in Taiwan, but could (at a stretch) be considered another step away from China.
Summary
In the above paragraphs, I’ve listed every element of the constitution which could conceivable be taken to identify the constitution as a Chinese (rather than Taiwanese) one. You can see that there isn’t really that much which is related to independence: a set of symbolic issues, one comment about unification, a couple of pragmatic laws to handle the difference between official and actual boundaries, and a set of redundent articles about places like Tibet. In a document containing 175 articles (plus 12 ammendments) that’s not a lot.
Of course, this shouldn’t be surprising: A Consitution is simply a set of laws to define how a country should be run - not what that country is. So, the more interesting question is what the real problems are with the current constitution, and how they might be changed. In a future post, I plan to cover this.
