Thu, Apr 21, 2005 page8

• Taiwan needs a new constitution

  • By Lee Ren-miau 李仁淼
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  In a recent legislative question-and-answer session, Premier Frank Hsieh (謝長廷) pointed out that the government does not rule out the possibility of amending the Constitution to counterbalance Beijing's adoption of the "Anti-Secession" Law. In addition, Hsieh expressed his support for abolishing the first six articles of the Constitution, which deal with the "one China" framework.

  According to constitutional theory, a "constitutional amendment" refers to the deletion, addition or alteration of the contents through procedures established in the original constitution.

  It is quite different from "constitutional establishment," which means abandoning a constitution and setting up a new one, or "constitutional transition," which means changing the legal significance of certain articles of a constitution without actually revising the contents of those articles.

  There has been some controversy concerning the limitations on what can be considered a constitutional amendment. Those who assert that there are limits on what can be considered "constitutional amendments" say such amendments should not touch fundamental constitutional content such as articles relating to sovereignty and constituent power. If amendments go beyond such limitations and alter the basic identity and continuity of the original constitution, then even if changes are enacted through constitutional procedures, they cannot be considered "amendments." This theory that there are limits on what can be considered an "amendment" is commonly accepted in Japan.

  Moreover, the Japanese theory of limitations on constitutional amendments is further divided into two schools. The first one, called the "dual limitations" school, is based on the theories of French revolutionary Emmanuel Joseph Sieyes and Carl Schmitt, a famous German constitutional academic. This school advanced two concepts. The first is "constituent power," which refers to the power to establish a constitution. The second is the "power of constitutional amendment." The former refers to the original power that creates a constitution and is not bound by any parameters, whereas the latter refers to the power authorized by the established constitution. Constituent power trumps the power of constitutional amendment.

  Hence the power of constitutional amendment cannot revise the basic constitutional principles established by constituent power. If fundamental political decisions are revised through the exercise of the power of constitutional amendment, then the limitations on constitutional amendment has been exceeded. This should not be permitted.

  The second school adheres to what is called "natural law theory." This theory holds that even constituent power is bound by natural law -- that is, the higher moral law that trumps and must guide man-made laws, according to adherents. Amendments may not conflict with the essential norms of a constitution rooted in natural law. Therefore, whether or not there are explicit provisions in a constitution, the essential norms may not be breached by constitutional amendments.

  Sadly, there has been little debate on whether there should be limitations on amendments to Taiwan's Constitution, and what those limitations should be. This author believes that constitutional amendments must not revise fundamental principles, such as those touching on sovereignty, the protection of human rights and the separation of powers. Such basic principles cannot be amended.

  However, this is not to say that specific human rights articles of the Constitution can't be amended. For example, adding environmental rights to the Constitution will not conflict with the fundamental principle of human rights protections, so it will not exceed the limitations on constitutional amendments.

  But Articles 1 through 6 of Taiwan's Constitution are another story, because they are related to fundamental constitutional principles. Article 1, for example, stipulates that the Republic of China (ROC) shall be a democratic republic of the people, by the people, and for the people. And Article 2 provides that the sovereignty of the ROC belongs to all of the people.

  Altering or deleting provisions relating to such fundamental constitutional principles go beyond the limitations of constitutional "amendment." Therefore, the legitimacy of any such deletions would be dubious.

  Furthermore, we should seriously consider that according to the theory of sovereignty of the people, constituent power lies in the hands of the people of a sovereign state, who hold the power to amend or create their constitution in accordance with natural law. We must examine Taiwan's Constitution -- which it must be noted is called the Constitution of the ROC -- based on that theory.

  This Constitution was established through the exercise of constituent power by the Chinese people. Taiwanese people do not have the power to amend it, since they did not participate in its creation. Despite this, of course, six rounds of Constitutional amendments occurred from 1991 to 2000.?

  The exercise of constituent power by the Taiwanese people to amend the ROC Constitution -- which itself is no longer applicable to China -- must be seen as a serious violation of constitutional theory.

  Moreover, because the ROC Constitution has been amended year after year in Taiwan in violation of this theory, the Constitution has already lost its essential nature as the fundamental law of the state. And after six rounds of Constitutional amendments, we have still failed to settle Taiwan's complex constitutional issues.

  When we think about how to resolve these difficult constitutional questions, we should not lapse into the myth that constitutional amendments are the answer. Rather, we should establish an entirely new constitution that can ensure Taiwan's sovereignty. This is the only correct way for us to resolve the nation's constitutional issues completely and effectively.

  Lee Ren-miau is an assistant professor in the law department at National Chung Cheng University.

  Translated by Daniel Cheng and Eddy Chang
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