Former President Lee Teng-hui
But does Taiwan really meet these requirements after repeated constitutional amendments?
From the standpoint of the social contract, constitutional amendment must be made on the behalf of a sovereign people. If we maintain that the ROC Constitution governs China, then any amendment of the Constitution must be made on the behalf of the 1.2 billion people there. Amending the Constitution simply with the consent of the people of Taiwan -- who make up less than 2 percent of all "Chinese" (ie people in "mainland" China and Taiwan) is equivalent to drafting a new constitution.
The amendment process itself has in fact confirmed that the people of Taiwan are a sovereign people. In addition, some of the newly-added constitutional articles substantively changed our constitutional framework, so that it has become closer to the political system of the French Fifth Republic. The spirit of the original ROC Constitution, which mapped out "five separate governing branches, each with well-defined powers," had gradually diminished. As the jurisdiction of the additional articles are confined to Taiwan, Penghu, Kinman and Matsu, the ROC's territorial border may also be deemed to have been redefined. Therefore, we can conclude that a second republic has indeed been long established. In fact, Taiwan resembles an entirely new state.
According to the additional constitutional articles, the rights and obligations between the people across the Taiwan Strait may be provided by laws. However, the regulations on such rights and obligations seem to closely parallel the standard laws governing international conflict of law, and entries to and exits from national borders. As these regulations were enacted pursuant to the additional constitutional articles, they have substantive jurisdiction over our people and territory, but not the people in China. This unambiguously shows just who are the "sovereign people" of ROC.
As for the question of state territory, let's use Germany as an example. Beginning in the 1950's, the relationship between East and West Germany was the subject of heated debate between proponents of "two countries" and "one country." The West German government insisted that it represented the entire German state and cut off diplomatic ties with any country recognizing East Germany's statehood.
Before German unification, the two sides executed a Basic Treaty. In a judgement confirming the constitutionality of the treaty, the Federal Constitution Court declared that "West Germany understands that East Germany is a state under the public international law and that the Basic Treaty is a treaty between the two states. However, West Germany has never considered East Germany as a foreign nation." The judgement, in clinging tightly to the concept of "one nation, two states," was unable to substantively resolve the legal conflicts brought on by territorial and sovereign division.
The regulations on relationships between people across the Taiwan Strait are obviously a lot more comprehensive. They include an abandonment of the right to sanction the people in China, which is a power symbolic of the exercise of state sovereignty. It essentially marks the territorial boundary for the jurisdiction of state sovereignty.
Therefore, we can see that the constitutional amendments have substantively established a new constitutional order for our country, unambiguously clarifying the scope of state sovereignty. After legislative elections and direct presidential elections, ROC has essentially lost its capacity to represent China.
In terms of the four elements of statehood -- people, government, territory and sovereignty -- an entirely new nation state has substantively been created, not just a second republic of an old nation state. The people of Taiwan have elected a new government that is the supreme ruling organ, exercising state sovereignty within a designated territorial border and representing itself as the government of a nation state to members of the international community.
Given the backdrop of the early 1990's, the drafting of a new Constitution would have outraged many supporters of the "historical" ROC. The drafting of a new Constitution under the guise of constitutional amendments avoided offending some people, while allowing the constitutional order to continue operation.
Canada once faced a similar dilemma. The British North American Act in 1867 and The Charter of Rights and Freedom in 1982 are both constitutional articles currently in force. The former symbolizes the continuation of the British colonial era, while the latter addresses the fundamental operation of Canada's constitutional framework and the protection of fundamental rights. X
Facing a gradually emerging substantive statehood, must Taiwan opt for a name that accurately describes its political reality? Examining the Taiwan independence platform of the DPP could provide answer. The platform has four main demands: a name that serves as an emblem of statehood; the establishment of a new constitutional order; entry into the international community as a sovereign state; and, cultural diversity, as well as civic consciousness. The first demand is not urgent. The second has gradually materialized during the decade-long constitutional amendment process. The third is also being implemented, along with our participation in international organizations such as APEC and the WTO. The fourth demand pinpoints solutions to problems current facing our society.
A state emblem will be dealt with when the time is right, there is no need to rush. Not much adjustment is needed with the legal and political order right now, except in the areas of human rights and law and order. As for state status, President Chen Shui-bian
Lin Cho-shui is a DPP legislator.
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