Final sovereignty transfer needed HoonTing@Taipei Times 20181215 Translated by Chang Ho-ming
Taiwan
is a successful example of transformation from authoritarian rule to democracy,
but the nation still lacks the foundation for implementing true rule of law. Due to the confusion resulting from the
Republic of China’s (ROC) Constitution, the consolidation of Taiwanese
democracy has encountered problems that are hard to solve, and the nation is
constantly bullied by China without being able to fight back.
In terms of its
content, the Constitution was originally intended for China, which makes it
inappropriate for Taiwan. Rendered
ineffective for decades by the Temporary Provisions Effective During the Period
of National Mobilization for Suppression of the Communist Rebellion (動員戡亂時期臨時條款), which served the
needs of the military government, the Constitution was — absurdly — only
restored after Taiwan’s democratization.
The restoration was
quickly followed by numerous piecemeal amendments aimed at making the
Constitution conform to local needs, but the amendments only created an awkward
situation that blurs authority and responsibility.
For example, the president
is in charge of national security and foreign affairs, but does not need to
answer to the legislature. The president
can also call meetings between the heads of the Legislative Yuan, Executive
Yuan and Judicial Yuan to resolve disputes between the branches of government.
Bypassing the
separation of powers in this manner hampers the consolidation of Taiwan’s
democracy.
In terms of
legitimacy, the Constitution was enacted by the citizens of China in 1946 and
took effect the following year. It was originally a Chinese constitution.
Before the San
Francisco Peace Treaty was signed, Taiwan was still the territory of an enemy
state waiting for reconstruction, while its status remained undecided and its
people continued to be Japanese citizens, so how did
they enact a Chinese constitution?
If
Taiwanese could not enact a Chinese constitution, how could they be ruled by
such a constitution?
In 1949, the
constitution was replaced in China by a new provisional constitution, namely
the Common Program of the Chinese People’s Political Consultative Conference(中國人民政治協商會議共同綱領). The People’s Republic of China’s current
constitution is the fourth version since 1954 and this version has already been
amended five times.
Theoretically
speaking, the ROC Constitution was already abolished by its constituents — the
Chinese public — in 1949. Absurdly, this historical document with no binding power, which in
theory has no legitimacy when it comes to governing and administering Taiwan,
is still used to guide the everyday operations of the government. How absurd is that?
There is an immense
discrepancy between the theory and the reality of Taiwanese democracy. Finding a theoretical foundation for reality
is a political issue with extremely profound implications.
After the Pacific War
ended, Taiwan, South Korea and other Japanese colonial possessions were placed
under military occupation by the Allied powers, which appointed generalissimo
Chiang Kai-shek (蔣介石) to occupy Taiwan in their name, establish a military government, and
embark on economic rehabilitation and political reconstruction. Meanwhile, Taiwanese were waiting for a peace
treaty that would determine their future.
According to the
Potsdam Agreement(波茨坦協議), signed on Aug. 2, 1945, the rationale behind the Allied powers’
military occupation of Germany was to transform the Axis powers’ militarist
administrations into modern democratic and free societies valuing human
rights. This was also the principle for
occupying and establishing military governments in the former Japanese Empire.
A military government
is only a type of administrative government and does not affect the sovereignty
of the occupied territory. However,
occupying authorities have the power to shelve questions of sovereignty and
administer the territory as a legitimate sovereign power would do.
Upon the completion of
reconstruction, occupying authorities should hand over sovereignty to a local
democratic and legitimate government.
The handover process
must take into account changes in both internal and external conditions, and
also involve a staged transformation of the nature of the government from an initially strict military government, where a
governor-general has autocratic powers, to an interim government and then a
transitional government that gradually hands over power.
Eventually, a new
constitution should be selected in a referendum and general elections should be
held to form a legitimate local government, to
which sovereignty is then transferred.
This reconstruction
model was not only followed by Japan, South Korea and Germany after the war, it
was also observed in the reconstruction of Afghanistan and Iraq after the wars
there this century.
However, in Taiwan,
there is also a “Chinese” constitution element thrown into the mix, which
narrows academics’ focus to the Chinese Civil War and blurs the trajectory of
political reconstruction.
The occupying
authorities needed a basic guideline to direct political reconstruction, but
Taiwan did not have one. Instead, a
Chinese constitution was used, which, in addition to already having been
abolished, was also irrelevant to Taiwan.
From a functionalist
perspective, this historical constitutional document, which had been abolished
and rendered ineffective by the Chinese, met the needs of the dictatorial power
of the governor-general in the initial phase of military governance.
Appropriating a
historical document does not affect sovereignty, nor does it override the
authority granted by the Allied powers.
It is
only by treating the ROC Constitution as an “organic law for the occupied
territories” from the perspectives of post-war political reconstruction and
functionalism that this Constitution can be seen as legitimate.
Moreover,
it is only because the Constitution is viewed as “the organic law of Taiwan”
that the Taiwanese gradually can amend it in accordance with the needs of
political reconstruction and remain in compliance with the demands of national
sovereignty.
Taiwanese
have come a long way to obtaining full self-governance, and organizing a
democratic and legitimate government: from the first general local government elections
in 1950, the first by-elections for the National Assembly and the Legislative
Yuan in late 1969, and the launch of self-governance in the 1980s after the
severing of diplomatic ties with the US, to the constitutional revisions and
general elections of the 1990s, and the culmination of Taiwanese
self-governance with the first direct presidential election in 1996.
However, the sovereignty transfer part of political reconstruction
still lies in the distant future.
The
original constitution and the Temporary Provisions could be viewed as “the
Organic Law, Version 1.0,” and after the seven amendments passed in the 1990s,
the current Constitution can be seen as a semi-democratic “Organic Law, Version
1.5.”
Nevertheless, the intrinsic authoritarian nature of the Constitution
has impeded Taiwanese democracy, and its reference to “China” in the title
makes it vulnerable to China’s unreasonable suppression using the “one China”
excuse.
For that reason, Taiwan needs a brand new “Organic Law, Version 2.0” to
consolidate democracy and counter foreign bullying. This will require the efforts of the
Taiwanese and the support of the US, the “Principal Occupying Power.”
HoonTing is a
political commentator.
Translated by Chang
Ho-ming
收穫很大。想到顏聚享老師的文章
回覆刪除〈真的有「佔領法」?(上):佔領的開始〉
@法律白話文
https://plainlaw.me/2017/07/06/occupied/
TW Democracy志工 敬上
很高興,終於有學者研究佔領了。
刪除非常有系統。
這是一塊很大的領域,瞭解了佔領,就瞭解如何取得國格。
特別對台灣為真。
發問噗
回覆刪除有無可能發生一種狀況,即
主要佔領怠惰,讓過渡從7年變成70年
謝謝,不勝感激!