The words of Minister of Justice Chen Ding-nan (陳定南) may not always be intended to surprise, but ever since he assumed office, his words and deeds have frequently both inspired and enlightened me as a student of the law.
The minister has said, "The term `founding father of the nation' relates to the rights and duties of the people. It should therefore be explicitly defined in the law, otherwise the name, `Dr. Sun Yat-sen [
To some extent, the minister has a point. The laws governing oath-taking stipulate that the party taking the oath must do so aloud before a portrait of the late "founding father of the nation."Arguably, if a person didn't know who that was, then he wouldn't know whose portrait he was facing. Declaring an oath before what could be anybody's portrait might affect the validity of the oath. So the identity of the "father of the nation" does indeed have a bearing on people's rights.
The trademark and patent laws both stipulate that items similar to the portrait or name of the "founding father of the nation" are not eligible for trademark status or patent protection.
Additionally, Article 302 of the Rules Governing Management of Routine Affairs (事務管理規則) presents an example of a public ceremony. It includes bowing to a portrait of the "father of the nation" and respectfully reading aloud his last instructions -- actions which may relate to the duties of the people.
If it is for these reasons, however, that the identity of the "father of the nation" impinges on people's rights and duties and should therefore be formulated in the law, then, we are bound to ask, what doesn't relate to the people's rights and duties? Must all such matters be enshrined in law by the Legislative Yuan?
Moreover, are the words, "Dr. Sun Yat-sen," clear and specific enough? Since the beginning of time, has there been only one Sun Yat-sen? If not, should it be stated in the central govern-ment's law on legal standards that, "`Dr. Sun Yat-sen' refers to ... and so on?" If the words are clear enough, why aren't the words "founding father of the nation" clear enough?
In Taiwan, while many people may object to the fact, everyone knows that the "founding father of the nation" mentioned in the law is indeed Sun.
Taiwan's legal code contains numerous terms which are far vaguer and more harmful to people's rights [eg, the definition of "obscene act" in the Criminal Code]. If the lawmaking organs of the government have the resources to mull over every word, they should give priority to more important legal terms.
Of course, we can discuss who has made the greatest contribution to Taiwan or the ROC and who most merits anointment as the "founding father of the nation."
No order passed down 60 years ago in the early years of the ROC, prior to the adoption of the Constitution in 1946, is engraved on a tablet of stone. At the very least, the area controlled by the KMT government at that time -- China -- no longer recognizes Sun as its founding father.
We in Taiwan are entitled to reconsider whether Taiwan -- which wasn't controlled by the KMT government during Sun Yat-sen's lifetime -- should recognize him as our founding father.
Indeed, it is more than likely that this sensitive issue will be the subject of endless stormy debate. But whether to expend energy on such matters, which serves only to raise our tempers while doing nothing for the economy, involves a value judgement to be made by each individual. It is not a matter on which Chen should be spending precious ministerial time and energy.
Chang Yung-chien is a lawyer and a graduate student in the department of law at National Taiwan University.
Translated by Ethan Harkness
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