Sat, Jan 22, 2011 page8

• There aren’t constants in our lives or government

  • By Peng Ming-min 彭明敏
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  There has been a huge fuss made about the 18 percent preferential interest rates for pension savings accounts of retired military personnel, civil servants and teachers, with advocates on either side of the argument at each other’s throats.

  On one side, there are people claiming we must adhere to the principle of “guarantee of trust,” and who believe that the privilege should be normalized. It is also true that many in the public haven’t heard of this particular proposition and have never really understood who or what it is they should trust and who or what is responsible for the guarantee.

  It is true that if a treaty or agreement is made in a given society, it is important that it be honored and not altered without prior consultation. It is also important to remember another, perhaps more fundamental, legal principle — one without which objective, rational discussion shall become labored — rebus sic stantibus, which roughly translats to “at this point of affairs” or “in these circumstances.”

  According to this principle, any treaty or agreement is contingent upon the fact that the status and conditions upon which it was based do not change to a substantial degree and that, in the event any substantial change does occur in any given objective situation, said treaty or agreement should be reviewed, adjusted or otherwise amended. This principle exists, either explicitly or implicitly, in any agreement — whether it be between individuals or nations, and whether it be legal, political or economic in nature.

  There is also, of course, the principle of justice, although this will not be touched upon here. The objective of rebus sic stantibus is to promote social fairness, peace and stability.

  Let’s look at an international treaty by way of example. The Qing Dynasty ceded Taiwan to Japan “for perpetuity” in the 1895 Treaty of Shimonosek. However, all peace treatises signed with Japan were negated in 1951 and Taiwan no longer belonged to the Japanese. Tokyo could no longer appeal to Shimonoseki or any “guarantee of trust,” as the basis for its control of Taiwan for perpetuity.

  The same is true for decisions made during the Cairo Conference in 1943 and the Potsdam Conference in 1945, in which it was decided to hand Taiwan to China (specifically the Republic of China). It is important to realize that these were not legally binding treatises, they were simply agreements expressing the post-World War II policy directions the Allied forces intended to take.

  The post-war years witnessed huge changes both in the international situation and in Taiwan’s own domestic and foreign affairs; changes unforeseen at the time of the aforementioned conferences. These included the Chinese Civil War, the 228 Incident, the emergence of two nations both calling themselves China, the impossibility of democratization in Taiwan under the Martial Law system imposed by the Chinese Nationalist Party (KMT) and the subsequent establishment of universal values such as democratic freedoms and the right to self-autonomy in Taiwan.

  These changes not only rendered the pronouncements made at Cairo and Potsdam irrelevant, they also proved to be completely erroneous. One can point to so many more similar examples of these kind of developments in human relations and domestic laws.

  Nothing is constant but change — and this is as true for human life as it is for governments. If we insist on preserving special privileges propped up with preposterous assertions, things are sure to descend into chaos.

  Peng Ming-min is a former presidential adviser.

  TRANSLATED BY PAUL COOPER
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