Thu, Apr 05, 2012 page8

• Unraveling the mystery of Taiwan’s constitution

  • By Bo Tedards
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  It is sad, but unsurprising, that the Taipei Times misunderstands the position of the Republic of China (ROC) Constitution regarding “one China” (Editorial, April 3, page 8). Sad because people are prevented from gaining useful understanding; unsurprising because hardly anyone in Taiwan understands this issue clearly.

  Politicians can perhaps be excused for simply mouthing whatever they think will win them votes, but when even so-called “legal experts” can make blatantly incorrect statements, we have a real problem.

  So where exactly does the Constitution detail national territory?

  Most people think they know the answer: Article 4.

  In the original Constitution, adopted in 1947, it states: “The territory of the Republic of China according to its existing national boundaries shall not be altered except by resolution of the National Assembly.”

  That is it; there is no specification of any territories, only the mention of “existing” boundaries (this is the official translation, from the Presidential Office Web site, of the Chinese term guyou [固有], which some feel would be better translated as “inherent”).

  Of course, having been written by people in China they must have been including the main areas of China, and then there are several articles about elections of representatives from the Mongolian and Tibetan areas (Article 26, paragraphs 2 and 3; Article 64, paragraphs 2 and 3; and Article 135).

  However, all that is so much water under the bridge.

  First, Article 4 has been ruled “non-justiciable” by the Council of Grand Justices. Asked whether Mongolia was still a part of ROC territory, the council in 1993 issued Interpretation No. 328, which ruled that the legislative intent of the term “inherent/existing” was specifically to avoid setting down precise boundaries, since the areas controlled by the ROC in China at the time were continually shifting with the tides of the Chinese Civil War. The interpretation thus held that the phrase is a political question that cannot be assigned any fixed legal definition. The practical impact of this ruling is that it is legally impossible to “violate” Article 4, since anyone could assert any notion of “inherent/existing national boundaries.”

  Second, Article 4 is no longer in effect. It was replaced in 2000 by paragraph 5 of Additional Article 4, which itself was amended in 2005. Although Additional Article 4 contains almost the same phrase, “the territory of the Republic of China, defined by its existing national boundaries,” surely the use of the term “existing” in 2000 or 2005, without qualification, does not mean “existing as of 1947.”

  This does not pass the common sense test.

  Recall that ever since the first set of constitutional amendments abolished the “10,000-year parliament,” the Additional Articles of the ROC Constitution have been enacted by people representing only the current territory of the ROC — not to mention that the hypothetical change in boundaries would now be approved only by the electorate in the current territory. Could the legislative intent really have been to give voters in Taiwan sole authority to change, say, the location of the border between Tibet and India’s Arunachal Pradesh state?

  Thus it is quite astonishing to hear all kinds of pan-blue figures, from law professors to top national leaders, continuously invoking Article 4 as if it were still the law of the land. At the same time, it is hardly less amazing that we have seen no really effective rebuttal by pan-greens, who are apparently as confused as everyone else on this issue.

  Without at least a minimum degree of clarity as to what the Constitution actually says, it is hardly possible to usefully discuss whether we can or ought to use it to address issues of cross-strait relations, or indeed anything else.

  Bo Tedards is a political commentator living in Taipei.
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