Democratic Progressive Party (DPP) Chairperson Tsai Ing-wen (蔡英文) pledged to push for peaceful development of cross-strait relations within the framework of the Republic of China’s (ROC) Constitution if elected president next year. She addressed the issue from the constitutional perspective. Since Chinese President Xi Jinping (習近平) also talks about his “constitutional dream” (憲法夢), there might be some common ground.
“One China” is like an unbreakable “ancestral tablet” for the Chinese Communist Party (CCP). From a historical and cultural perspective, it is related to the government’s legitimacy. During their power struggles, Chiang Kai-shek (蔣介石) and Mao Zedong (毛澤東) both claimed to represent all of China. Through Chinese history has there ever been a legitimate ruler?
Even Song Dynasty officials Sima Guang (司馬光) and Ouyang Xiu (歐陽修) disagreed over the legitimacy of previous dynasties. Originally, Beijing’s “one China” policy was non-negotiable. Since Xi and Tsai choose to talk about constitutions, this might be a once-in-a-lifetime opportunity, although the party often takes precedence over the constitution in China.
Xi’s background differs from that of previous Chinese leaders. His parents were from China’s Shaanxi Province, so he is the first northerner CCP leader; China’s “10 founding generals” were all southerners. Surprisingly, Xi has appointed only northerners to lead the Chinese Central Military Commission. He is using regional affinity to put tight controls on the military and is preparing for action. Xi is unique indeed; take for example his proposed “One Belt, One Road” project. Xi has a good sense of history. Perhaps Tsai can interpret policy from his call for “ruling the nation in accordance with the law and the Constitution” (依法依憲).
Taiwanese accept Beijing’s claim that there is only one China, since the ROC ended the Temporary Provisions Effective During the Period of Communist Rebellion (動員戡亂時期) in 1991. Taiwan also, recognizes the claim that the so-called “one China” refers to the People’s Republic of China (PRC). As for the claim that the two sides of the Taiwan Strait belong to “one China” and Taiwan is a Chinese territory, this is an extension of the traditional concept of legitimate rule.
However, governance that employs constitutionalism says that legitimacy comes from the consent of those governed, and where they reside is the territory under that governance. It is unrelated to any imagined community or legally constituted authority. The preamble of the PRC constitution states that: “Taiwan is part of the sacred territory of the PRC.” This was used as the legal foundation for the “Anti-Secession” Law that permits China to invade Taiwan.
There is a connection between a country’s constitution and its territory, although countries like the US and Japan do not specify territories in their constitutions. The four versions and four amendments of the PRC constitution do not specify Chinese territory either, but the preamble still claims Taiwan as part of China.
From Xi’s perspective, the connection between a country’s constitution and its territory should be that national territory is the area where the constitution is implemented and where its judiciary is effective. By this standard, Taiwan has not been Japanese territory since World War II and China has not been ROC territory since 1949. Similarly, the PRC’s territory does not include Taiwan.
A leader is made legitimate by the consent of those governed. The social contract between a government and those being governed can be called a constitution. Since Xi attaches great importance to the PRC constitution, he should adopt this view.
Christian Fan Jiang is deputy convener of the Northern Taiwan Society’s legal and political group.
Translated by Eddy Chang
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