Council of Grand justices nominee Hsu Chih-hsiung (許志雄) said during a question-and-answer session at the Legislative Yuan that he thinks the first line of the national anthem is problematic. His comments have renewed the debate about constitutional values and Taiwanese national identity.
Several legislators and commentators questioned why Hsu would want to serve as a grand justice and safeguard the Republic of China (ROC) Constitution if he does not identify with it.
The dispute is not limited to the issue of grand justices — presidential candidates are sometimes also judged by the same standard.
Such arguments are often raised and become highly politicized during presidential campaigns, creating an atmosphere that if someone is unwilling to sing the national anthem, then they must be unfit to serve as president or in any other public office.
The question is whether it is true that a person who is unwilling to sing the national anthem is unfit to serve on the Council of Grand Justices, whose members are responsible for safeguarding the ROC Constitution.
To answer that question, it is necessary to clarify what a grand justice is supposed to safeguard: Democratic values set down in the Constitution or the symbols of the nation as defined by the Constitution?
Constitutionalism is an approach to uphold democratic values irrespective of the form of the nation, sovereignty or government. This is why federal states and constitutional monarchies, as well as nations with presidential, parliamentary or semi-presidential systems, can all be democracies. Constitutional values are by no means highlighted by simply showing respect for a nation’s anthem, flag or name.
What role, then, does the Constitution play for democratic values? It protects human rights and ensures the separation of government powers.
Traditionally, there are four main factors to what constitutes a state: a people, a government, territory and sovereignty. The state unites these four factors by forming a government that exercises sovereignty and protects its people within a specified territory. It is the public, the source of all political power — based on the principle of popular sovereignty — that the Constitution protects first and foremost.
National symbols are not carved in stone. There have been several precedents of democratic nations trying to change their national symbols. One example is New Zealand. Not long ago, the nation held a referendum on whether to replace its national flag.
Although the referendum did not change the flag, no one in New Zealand accused those who were in favor of holding the referendum of not identifying with the nation’s democratic values.
If a national flag can be changed through a referendum, then a national anthem, as well as a nation’s title and territory and other symbols, can all be changed through proper procedures. The constitution of a democratic nation must first and foremost protect the spirit of democracy and human rights, and not just the symbols of a nation.
Government officials at every level in Taiwan, including grand justices, should pledge allegiance to the Constitution, the public and the nation. However, of the three, the public is the most important, because they should be united in such a way that the state protects and serves the public according to the Constitution.
A nation’s anthem, flag or name are its outward manifestations at a certain place and time, and they, and the significance represented by them, by no means equal the nation.
The value and significance of the Constitution is ensuring the separation of powers, protecting human rights and upholding the principle of popular sovereignty.
Under the Constitution, grand justices must pledge their allegiance to the will of the people, the Constitution, which upholds human rights, and the state, which protects the public in accordance with the Constitution — and not to the symbols of the nation.
To base an assessment of a person’s qualifications for serving on the Council of Grand Justices and whether they will protect the democratic value that sovereignty rests with the public solely on whether they will sing the national anthem blurs the significance of the Constitution and its relationship with the public and the nation.
Shen Yu-cheng is an associate professor of political science at Tunghai University.
Translated by Tu Yu-an
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