Ever since the concept of introducing a “Taiwan basic law” was proposed as an alternative to the Constitution, there has been a great deal of discussion about the idea.
Some have argued that Taiwan should simply go ahead and draft its own basic law, while others have questioned the legal status of such a law and, fearing it could cause a serious rupture within society, advocate going down the constitutional route.
One often hears the phrase: “Taiwan is a sovereign and independent country and its name is the Republic of China [ROC].”
Although the ROC appears to possess all the trappings of a normal state, in reality, it is simply a framework imposed by military occupiers.
The ROC does not have sovereignty over Taiwan, Penghu, Kinmen and Matsu, and therefore is not a state, as an occupation force cannot transfer sovereignty to any side — including itself.
After a war ends, any transfer of sovereignty must be conducted through international treaty. An example of this is the 1895 Treaty of Shimonoseki that concluded the first Sino-Japanese war.
It is well established that the only treaty addressing Taiwan and Penghu after the end of World War II is the 1951 San Francisco Peace Treaty, which came into force in 1952, and that the treaty did not state to whom sovereignty should be transferred.
This is the source if the view that Taiwan’s status remains undetermined — it is not a theory, but a fact.
Drafting a completely new constitution tailored to Taiwan sounds like a good idea. However, it would inevitably create a conflict with the nation’s military occupiers — the ROC and the US governments.
There is only one way for Taiwan to become a regular nation: unilaterally reject the San Francisco Peace Treaty, create a revolutionary army to push back against the colonizers, declare a new, independent nation state, write a new constitution and obtain recognition from the international community.
Dissatisfied with the conditions of the Treaty of Sevres imposed by the victors of World War I and which finalized plans to partition the Ottoman Empire, Kemal Ataturk, the founder of modern Turkey, started and won a war with Greece to reclaim lost territory ceded by the treaty and then forced the Allied powers to sign the Treaty of Lausanne.
Ataturk’s actions brought international recognition for the Republic of Turkey. The parallel with Taiwan’s situation today is self-evident: The road to independence is never easy and must be fought for.
There is another route to the implementation of a Taiwan basic law. During the transitional stage at the end of a conflict, the basic law, enacted as a temporary measure in lieu of a constitution, carries the highest legal weight.
As for Taiwan, the nation uses a Constitution that does not belong to us and was spurned by China many decades ago. It was brought over and grafted onto Taiwan to serve as a basic law for its administration.
This farcical situation has continued for 70 years, and during this period it has been amended no less than seven times.
No Taiwanese should allow themselves to be bamboozled by the word “constitution.”
Taiwanese are not ROC citizens and therefore are not entitled to amend the ROC Constitution.
The facts speak for themselves. This quasi-constitution, despite its numerous amendments, is still incompatible with Taiwan.
As such, we advocate that the nation require a basic law that is fit for the 21st century and conforms with the nation’s principles of democracy, liberty and human rights.
According to the laws of war, it is not up to the liberated nation to draw up and enact a basic law by themselves. Instead, it must issue a request for authority and support to do so from the main occupying force — in Taiwan’s case, the US.
This should be our primary objective: lobbying members of the US House of Representatives and the US Senate, as well as US government officials, with all our might for a basic law that is worthy of the name.
Hsiao Hsiao-ling is a director of the Northern Taiwan Society and director-general of the Taiwan Teachers Union.
Translated by Edward Jones
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