The National Day of the Republic of China, commonly known as Double Ten National Day, was celebrated on Monday. Four days before the event, former president Ma Ying-jeou (馬英九) said he was against calling it “Taiwan National Day.”
“Let us hope that President Tsai Ing-wen (蔡英文), in her address to the Republic of China National Day ceremony, will clarify the Constitution of the Republic of China and make it clear that our nation’s relations with the mainland consist of non-recognition of each other’s sovereignty and non-denial of each other’s power of governance, and definitely not two countries,” Ma wrote on Facebook.
Ma’s remarks stirred ire, with United Microelectronics Corp founder Robert Tsao (曹興誠) accusing him of “ganging up with China to bully Taiwanese.”
Ma might have a doctorate in law, but he clearly needs to retake a course in constitutional law, because the Constitution does not contain a single mention of “mutual non-recognition of sovereignty and mutual non-denial of governance,” and no constitutional interpretation by the former council of grand justices, which has been renamed the Constitutional Court, says anything to support his statement.
On the contrary, the court has in its interpretations identified the “constitutional order of liberal democracy” as being integral and indispensable to the essential nature of the Constitution. This makes deliberately confusing the sovereignties of Taiwan and China tantamount to pushing Taiwan’s “constitutional order of liberal democracy” toward China’s authoritarian dictatorship. The court would really find that to be unconstitutional.
Interpretation No. 499 states: “Some constitutional provisions are integral to the essential nature of the Constitution and underpin the constitutional normative order. If such provisions are open to change through constitutional amendment, adoption of such constitutional amendments would bring down the constitutional normative order in its entirety. Therefore, any such constitutional amendment shall be considered illegitimate, in and of itself. Among various constitutional provisions, Article 1 (the principle of a democratic republic), Article 2 (the principle of popular sovereignty), Chapter II (the protection of constitutional rights), and those providing for the separation of powers and the principle of checks and balances are integral to the essential nature of the Constitution and constitute the foundational principles of the entire constitutional order. All the constitutionally-established organs must adhere to the constitutional order of liberal democracy, as emanating from the said constitutional provisions, on which the current Constitution is founded.”
In so stating, the court affirmed that the most essential nature of the Constitution is the “constitutional order of liberal democracy” and not Ma’s “one country, two regions” or “mutual non-recognition of sovereignty.”
The idea of “mutual non-recognition of sovereignty” is not just completely unsupported by the Constitution and by the interpretation, but also unintelligible and unacceptable to all the world’s democracies. By deliberately confusing the sovereignties of democratic Taiwan and dictatorial China, Ma pushes Taiwan’s constitutional order toward China’s dictatorship under Chinese President Xi Jinping (習近平), whose terms in office are unlimited. This runs contrary to the essential nature of a democratic constitution, as laid out in Interpretation No. 499.
Ma’s education in constitutional law is out of date, and he has a habit of willfully misinterpreting the Constitution and imagining things that it does not say. He should really retake that course.
Huang Di-ying is a lawyer and chairman of the Taiwan Forever Association.
Translated by Julian Clegg
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