Constitutional frameworks
A distinction between Taiwanese self-determination on the one hand, and the Republic of China (ROC) Constitution on the other, was revealed by how president-elect William Lai’s (賴清德) post-election speech was translated into English (“Presidential Election: Lai’s victory sparks jubilation,” Jan. 14, page 1). The interpreter first said: “I will act in accordance with our democratic and free constitutional order,” but this was soon corrected to “the ROC constitutional framework.”
The former wording was hardly a slip of the tongue. A touchstone for defensive democracy in constitutional law is the term of art “freiheitliche demokratische Grundordnung” (自由民主憲政秩序 or liberal democratic basic order) pioneered by the German Basic Law (“Ko’s latest proposal a non-starter for Kinmen,” Sept. 16, 2023, page 8).
In Taiwan, this phrase (自由民主憲政秩序) appeared in Constitutional Interpretation No. 499 (March 24, 2000), a case about amending the constitution (“National Assembly reforms debated,” April 2, 2000, page 3; additionally, “Ma’s idea of National Day has no basis in law,” Oct. 13, 2022, page 8). It connotes an aspiration to the universal principle of self-determination through democracy and the rule of law.
The latter wording was no coincidence either. The Chinese Civil War framing relegates Taiwan to a domestic affair for China and dissuades international intervention. That is why it has been championed by both Chinese parties — the Chinese Communist Party in China and the Chinese Nationalist Party (KMT) in Taiwan, as Li Thian-hok (李天福) pointed out as early as 1958 (“Book review: A Taiwan Advocate in the US,” Aug. 27, 2020, page 14). That is also why, when President Tsai Ing-wen (蔡英文) was first elected eight years ago, Chinese Minister of Foreign Affairs Wang Yi (王毅) demanded that she respect “their own constitution” (“China’s mention of ROC Constitution no landmark: academic,” March 1, 2016, page 3).
The Tsai administration strengthened international support for Taiwan while keeping to the ROC constitutional “status quo” by emphasizing that neither side of the Taiwan Strait is subordinate to the other. It remains to be seen how president-elect Lai, the pragmatic worker for Taiwan’s independence, will navigate this terrain.
Te Khai-su
Helsinki, Finland
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