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:

  1. 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.
  2. 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.
  3. 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).
  4. 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.

5 thoughts on “Constitutional change and independence

  1. sun bin

    “I get frustrated by the knee-jerk ‚ÄúConstitutional reform equals a move towards independence‚ÄĚ”

    people in taiwan just like to abuse the word ‘equal’
    peaceful demonstration = (bloody) revolution
    dpp=democracy=taiwan
    csb=dpp
    anti-csb= anti-taiwan
    revising constition=TI
    referendum = TI

    in reality the issue of revising constition (and referedum) are that they set precedence for “independence”. but you are right, even if you are against independence, you shall not object any change to constitution. it is something drafted 100 years ago, and those who drafted it were not really great visionaries.

  2. Pingback: The View from Taiwan: Daily Links, September 5, 2006

  3. taiwanren

    all these talks of constitutional amendments or writing a new one will not change the fact that in 2008 , Superstar Ma of the KMT will take over and that would be the end of TI as we know it today.
    survey after survey have shown that no one comes even close to half of the Superstar popularity.

  4. hing chuy

    I agree that if the election is held in taiwan today, the chance of KMT ma ying jiu winning is almost certain, i voted twice for the DPP in the last 2 presidential election, but sadly , there is no one in the DPP has the charisma and personality of Ma.
    I’m saying that by 2008, we won’t have any new constitution, we’ll still have the same one, and the reason is because KMT superstar Ma will stop any moves toward independence de jure.
    i call him superstar ma because that’s what all the tabloids here in taiwan are calling him now.

  5. Ken Wu

    there are a couple things we need to know before getting further into the discussion of how to revise/change the constitution to suit today’s needs. First, given the fact that everyone would most certainly agree that change are needed for the existing constitution to be “updated”, what is the objective of the change? TI or simply make it a “Taiwan-friendly operation manual” for the ROC trustee government on Taiwan?

    Second thing is, if we do make any changes in the constitution that deals with Taiwan’s sovereignty or ROC’s possession of sovereignty, does it really matter for the ROC does not possess Taiwan’s sovereignty and in order for the Taiwanese sovereignty status to be determined, it must go through self determination process. Is a constitutional change sufficient to achieve that sovereignty change? It seems like by changing the constitution, we still cannot effectively “unite Taiwan with ROC” or “declaring independence”.

    And finally, just because it is doubtful that there can be any effective sovereignty changes done through constitutional changes, it does not mean there can be no provisions made to lead to change of sovereignty status of Taiwan. Constitution, as you said, is a set of laws telling how a government(not country in this case) can be run, it can be made to set up the operation procedure to allow the people(who are the owners of the sovereignty of the land) to make the decision.

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