At an event last month marking the Democratic Progressive Party’s (DPP) 31st anniversary, President Tsai Ing-wen (蔡英文) called for constitutional reform, and major constitutional reform is exactly what Taiwan needs. Bizarrely, constitutional reform relies on selfishness and conflict between political parties rather than academic debate and evaluation.
Although politicians are aware of the Constitution’s apparent flaws, there is a great furor, and neither the ruling party nor the opposition parties are willing to push for constitutional reform.
The reason is simple: politicians are not saints. Those in power are reluctant to give up their political advantages, which grant them great power, but little responsibility, while those in opposition, who lack sufficient power and therefore try to win public support by promoting constitutional reform, would become just like their predecessors once elected.
According to the law, a constitutional amendment must first be passed by a legislative quorum of at least three-quarters of all legislators and gain the support of at least three-quarters of present legislators. Six months after the result has been announced, the amendment must be confirmed in a referendum by at least half of all eligible voters in “the free area of the Republic of China [ROC].”
This is an excessively high threshold. There have been two opportunities for constitutional reform. One was practical: In 2008, then-president Ma Ying-jeou (馬英九) had a good opportunity, as the pan-blue camp held three-quarters of the seats in the legislature, but he has proven himself to be a selfish man.
The second opportunity is theoretical: Political leaders must be willing to diminish their their power in exchange for a place in history. Tsai will need a good strategy.
The Constitution can be considered dead in any number of ways. It was first scrapped when the Chinese Communist Party (CCP) implemented a temporary constitution, known as the Common Program of the Chinese People’s Political Consultative Conference. It later died several deaths as the CCP amended the PRC’s constitution on five separate occasions. Having scrapped the original Constitution in the first place, the CCP has no right to criticize Taiwan’s plans to amend it.
How can the Constitution, adopted in China in 1946, continue to bind Taiwanese? It was not until 1952 that Taiwanese were recognized as citizens of the ROC in the Treaty of Taipei.
When the Constitution was first passed, Taiwanese were still Japanese subjects, had no ROC citizenship and no right to vote or participate in its drafting — not to mention the right to amend it.
There is only one thing that can explain how the ROC ended up adopting something China no longer wanted. When Chiang Kai-shek (蔣介石) occupied Taiwan and the Penghu archipelago, there was no basic law for ruling the territory, so the abandoned Constitution, with its centralized approach to government, came in handy.
Whether the Constitution had been scrapped was irrelevant, as Chiang only needed a basic law to rule Taiwan and Penghu, which he occupied following the signing of the Treaty of San Francisco.
After October 1949, the so-called Constitution can only be seen as a basic law. Taiwan gained de facto autonomy in 1979 and held popular elections for the whole government in 1996.
In the past, only the military governor could amend the basic law, but now the citizens of Taiwan and the Penghu archipelago can participate in its amendment.
What remains to be seen is if Taiwanese politicians are willing to give up some of their power for a place in history.
HoonTing is a political commentator.
Translated by Tu Yu-an
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