The battle for Taiwan’s constitution Activists are resisting malign Chinese influence

However, amid the din of campaign-truck loudspeakers, news of a concurrent referendum to lower Taiwan’s voting age from 20 to 18 has been drowned out. And while an unfeasibly high threshold makes passage unlikely, the plebiscite highlights Taiwan’s ontological dilemma: the existence of an alien constitution, imposed by a colonising power.

Promulgated by Chiang Kai-shek’s Nationalist party (KMT) government in Nanjing in 1946, the Constitution of the Republic of China derives from the political philosophy of Sun Yat-sen. The teachings of the KMT founder and “Father of the Nation”, as he is known in Taiwan, are emphasised in the constitution’s preamble. To combat the corruption and lawlessness of early-20th century China, Sun espoused an enhanced separation of powers, into five branches — or yuan. In addition to the Legislative, Executive, and Judicial yuan, he proposed the creation of Control and Exam yuan modelled on China’s old imperial censorates. These latter two organs would be tasked with supervising official performance and overseeing civil service exams.

After he lost the Chinese Civil War to Mao Zedong’s Communists, Chiang, his KMT forces and roughly a million refugees fled to Taiwan, transplanting the ROC Constitution to the island in the process. The Taiwanese were given no say in this, and those who called for political participation were imprisoned or murdered.

Fast forward 75 years to a democratic country around 267 times smaller than China, with a population less than 4.5% the size of China’s back then, and it is obvious these supervisory bodies are unnecessary. Taiwanese politics may be plagued with corruption, but these extra layers of oversight don’t help. If anything, they’re part of the problem. Appointments to the Examination Yuan have been labelled “fat-cat patronage” by opponents, with academics vying for the exorbitant salaries of the positions they carry. Control yuan positions are similarly cushy: members are frequently friends with the politicians they should be monitoring. It’s hardly surprising cross-party support for the abolition of the two yuan has increased in recent years.

But there is a more fundamental problem with the constitution. Having remained intact during the KMT’s five-decade dictatorship in Taiwan, it has undergone minimal revision since the country’s democratisation. As such, it continues to enshrine the One-China principle in law, legitimising the CCP’s otherwise spurious claims over Taiwan.

Saturday marks the country’s first constitutional referendum since the 2005 abolition of the National Assembly — a detested symbol of KMT cronyism. Nicknamed the “old thieves”, the assemblymen nominally represented constituencies in China for decades, drawing huge salaries, and maintaining the fiction of the KMT’s continued authority over the “Mainland”. By the Nineties, a democratising Taiwan had had enough, and the “10,000-year assembly” was wound down.

Yet the amendment that abolished the assembly replaced one undemocratic element of the constitution with another, albeit less egregious, one. Until then, constitutional amendments were ratified by the assembly. Now, a bill must be initiated by 25% of Taiwan’s legislature. After that, approval from three-quarters of voters with a quorum of three-quarters of legislators is required. Finally, the amendment must be ratified within six months by an absolute majority of the eligible voting public. Before it even gets to the legislature, a proposal needs signatures from 1.5% of the eligible electorate — currently about 180,000 people.

It’s a credit to Taiwan’s civil society activism — particularly the efforts of youth NGOs — that we’ve got this far with the voting age amendment. Still, the prospect of its passage remains dim. And if this relatively uncontroversial amendment can’t be passed, what hope for root and branch reform?

“The constitution is both procedurally and substantively undemocratic,” says Lin Chien-chih, an associate research professor of jurisprudence at Academia Sinica, Taiwan’s preeminent research institute. “The hurdle to amending the constitution is unreasonably high — the highest among non-federalist countries.”

The procedural obstacles are even more disconcerting when considered alongside the constitution’s content. Article 11 of the additional articles from 2005 refers to the “rights and obligations between the people of the Chinese mainland area and those of the free area [Taiwan]”. National unification is also specified as a goal. “In other words,” says Lin, “our constitution still bizarrely argues that the PRC is part of the ROC or at least that the territory controlled by the PRC is part of the territory of the ROC.”

Not only is this “undemocratic in the sense that it defies what the Taiwanese people think or hope for”, but it also bolsters Beijing’s One-China narrative. Chinese officials regularly cite these provisions as confirmation of PRC sovereignty, a situation that Lin has described as “embarrassing and actually hard to gainsay”.

Does this mean the cause is lost? Not entirely. Social movements are one avenue to so-called “Taiwanisation” of the constitution. The 2014 Sunflower Student Movement was a notable success in this regard. After occupying the Legislative and Executive yuan, protestors managed to block the KMT government’s sleight-of-hand passage of a trade bill with China. But, as Lin notes, such protests cannot fundamentally alter the One-China bent of the constitution. The same goes for judicial review by Taiwan’s constitutional court, which avoids “the political thicket of controversies concerning national identity, operating at the margins rather than the centre”. A further possibility is constitutional desuetude — where provisions that fall into disuse are informally abandoned. With pro-unification politicians in Taiwan continuing to invoke the constitution’s One-China articles, Lin sees this as doubtful.

The best hope in the short term might be a return to the incrementalism that accompanied Taiwan’s democratisation. “This referendum could be a first step,” says Lin. “You start with less politically sensitive issues, and if successful, you move to things like the Control Yuan.”

Despite a reputation as a radical with a penchant for hurling flip-flops at adversaries and paint at dead dictators, Chilly Chen agrees with this approach. From his 11th-floor office, a view onto the Control Yuan building is a daily reminder of everything he rejects. As director of the Taiwan Republic NGO, Chen agitates for an end to the ROC and independence for Taiwan under that name. But he is pragmatic. In the face of Chinese threats, Chen accepts international recognition under the ROC rubric as a temporary compromise. “The end goal is to build a country called Taiwan,” he says. “But we have to keep this island safe. We’re democratic. We follow the rules. Nobody wants a bloody revolution, and nobody wants to see a war. So, we’ll go step by step.”

Yet in a climate of heightened Chinese aggression, many analysts believe that wholesale constitutional overhaul must wait. Even the groups behind Saturday’s referendum share this view. “Most Taiwanese won’t accept just ending our constitution immediately,” says Michelle Wu, director of Taiwan Youth Association for Democracy. “It can be adjusted softly.” While Lin agrees that enactment of a new constitution is “neither feasible nor necessary in the near-future”, he fears that failure on Saturday could convince radicals that incrementalism is doomed. This, in turn, could destabilise Taiwanese politics. “I’m pessimistic, but I do hope it passes.”

Back at TSP headquarters, Chen Yi-chi expresses similar sentiments. As he escorts me to the elevator, we pass the wall of shame again. Shaking his head in frustration, Chen says Taiwanese have been reduced to “self-censorship” for fear of enraging China. The constitution, he believes, should never be sacrosanct. “Revising the constitution represents protection of democratic freedom,” Chen says. “If Taiwan wants to decide its future and China says ‘no’, they are attacking the practice of democracy.”

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James Baron is a Taipei-based journalist focusing on Taiwan’s history, culture and foreign relations.

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