Constitutional Identities in the ROC Constitution

Constitutional identity is an amorphous concept that changes over time; indeed, no constitutional identity has remained fixed once forged. Theoretically, three major models of constitutional evolution exist.

Much has been written on the first two models. This chapter instead focuses on the third one, in which two mutually antagonistic identities are forged by the same constitution, and neither includes the other.^[788] The ROC Constitution is such a case. At one time, it embodied the Chinese constitutional identity that was carved out in China seven decades ago. After democratisation in 1987, the Taiwanese constitutional identity gradually surfaced through a series of constitu­tional amendments and judicial interpretations. Stimulated in part by the Taiwan independence movement, it is distinct from the Chinese constitutional identity that derives from, and still embraces, the one-China paradigm. Note that the old Chinese identity does not perish, but persists up to the present day. The following paragraphs articulate how the two constitutional identities are forged and how they interact with each other at three different stages: the founding moment; the authoritarian era; and political liberation.

A. The Founding Moment

In 1912, the KMT terminated the era of imperial China and established the Republic of China. Because of armed conflicts between the central government and local warlords, the constitution-building project was seriously postponed. After winning the first civil war, the KMT government promulgated the draft of the ROC Constitution.^[789] It was again tabled because of the second Sino-Japanese war,^[790] which heralded the beginning of the Second World War. After the end of warfare, unfortunately, another civil war between the KMT and the CCP ensued, and the former decided to unilaterally convene the constituent assembly, which was boycotted by the CCP. The constituent assembly enacted the ROC Constitution,^[791] which took effect in 1947 and became the supreme law of mainland China for two years. During the constitution-making process, 17 representatives from then Taiwan Province, along with representatives from other provinces, participated in the constituent convention.^[792] Although these token Taiwanese representatives did not participate in the constitution-building project substantively,^[793] their appear­ance in Nanjing, China reinforces the argument that the constitutional subject of the ROC Constitution included all Chinese people, including people in Taiwan at that time.

i. The Chinese Constitutional Identity

The promulgation of the ROC Constitution marked the constitutional moment and the watershed of constitution-building in China, fitting neatly in the revolution-based model,^[794] and became the first modern constitution in Chinese history.

Given that the ROC Constitution was enacted in China by the Chinese people, the original constitutional text naturally embodies the Chinese constitutional iden­tity, which is evident from both its preamble and its text. Specifically, the preamble clearly states that the Constitution was enacted in accordance with the legacy of Sun Yet-san, the founding father of the ROC.

ii. The Taiwanese Constitutional Identity

From 1895 to 1945, Taiwan was part of the Empire of Japan as a result of the first Sino-Japanese war. During the period of colonisation, the Meiji Constitution was implemented, albeit only ostensibly, in Taiwan.^[797] Meanwhile, Taiwan conscious­ness had emerged, notwithstanding some disagreements as to the exact timing. Some say it first appeared in 1895 before the annexation by the Japanese Empire;^[798] others suggest that it did not surface until the 1920s, when the Taiwan Cultural Association was founded.^[799] Regardless of the date, the birth of Taiwan conscious­ness did not translate into an identifiable Taiwanese constitutional identity in the Meiji Constitution. After the end of the Second World War, the ROC controlled Taiwan and allowed some Taiwanese representatives to participate in the constitu­ent assembly. Nonetheless, the February 28 incident in 1947, in which the KMT regime slaughtered thousands of Taiwanese, fuelled the formation of the Taiwanese national identity^[800] and planted the seed of the Taiwanese constitutional identity.

B. The Authoritarian Period

Unlike most constitutions that symbolise the end of warfare, the promulgation of the ROC Constitution intensified the armed conflict between the KMT and the CCP. Eventually, the KMT lost the civil war and mainland China to the CCP, fleeing to Taiwan with the nascent ROC Constitution in tow in 1949.^[801] From then on, the jurisdiction of the Constitution has been limited to Taiwan and several neighbouring isles. However, the jurisdictional change did not result in the imme­diate transformation of constitutional identity.

i. The Chinese Constitutional Identity

After the political catastrophe in 1949, the ROC Constitution lost almost all of its subjects and territory. Nevertheless, the Chinese constitutional identity did not disappear after the defeat of the KMT, thanks to political efforts and judicial decisions. The KMT refused to rewrite a new constitution even after realising that the ROC Constitution was impractical in Taiwan. One of the reasons for this is because the KMT wanted to bring the original constitution back to where it was born.^[802] Another reason is that any repeal of the Constitution would be conceptually unconstitutional as it lacked the consent of all Chinese people, including people in mainland China under the PRC regime. Namely, the KMT strived to fortify the Chinese constitutional identity by freezing the Constitution. Admittedly, although the KMT did not rewrite a new constitution, it did enact the Temporary Provi­sions Effective during the Period of Communist Rebellion, which were essentially constitutional amendments.^[803] Nevertheless, the fact that the Temporary Provi­sions were not officially named constitutional amendments reveals the KMT's reluctance to alter the nascent Constitution that was enacted in the name of all Chinese people. Even in the Temporary Provisions, the KMT emphasised that congressmen should be elected and convened ‘nationally' to secure the symbolic legitimacy of the Constitution and the government over mainland China.

Furthermore, judicial decisions helped consolidate the Chinese constitutional identity as well. The most paradigmatic one is Interpretation No 31, in which the Constitutional Court justified the suspension of national elections by arguing that ‘our state has been undergoing a severe calamity, which makes re-election... de facto impossible... all of the first-term Members of both the Legislative and Control Yuans shall continue to exercise their respective powers'.^[804] In fact, the real reason was that these old representatives could not be replaced because they were elected from mainland China and represented the sovereignty of all Chinese people. The existence of these people represented ‘the legally authentic succession within a regime', ^[805] a concept that might justify the KMT's claim of being the sole legitimate Chinese government in the world. Although local Taiwanese people were disproportionately under-represented in congress, it was constitutionally acceptable because ‘We the People' in the ROC Constitution referred to the whole Chinese people, not merely Taiwanese people.

Ideally, the personnel of a government, which should generally mirror the composition of the population, can be a proxy of a constitutional subject. However, during the authoritarian period, all important positions prescribed in the Consti­tution were staffed by people in proportion to the population in each province before the civil war to maintain the facade that the government represented all Chinese people (but not simply Taiwanese people).^[806] By contrast, local Taiwanese occupied only two per cent of seats,^[807] despite the fact that about 85 per cent of the population was native Taiwanese. This scenario was no exception with the composition of the Court. In the first term, only one justice (out of 17) was born in Taiwan, and the concern of provincial origin was not removed until the sixth term.

ii. The Taiwanese Constitutional Identity

Although Taiwanese consciousness was suppressed vehemently during the author­itarian period, it did not disappear completely.

C. Political Liberation

The lifting of martial law in 1987 marked the turning point of constitutional iden­tity in the ROC Constitution. The Chinese constitutional identity faded, but did not dissipate completely. Meanwhile, the Taiwanese constitutional identity was officially recognised in the constitutional amendments, judicial decisions and political practice.

i. The Chinese Constitutional Identity

After political liberation, seven rounds of constitutional amendments ensued. The preamble of the constitutional amendments unmistakably stated that the purpose of enacting constitutional amendments is to prepare for unification with mainland China. Moreover, the amendments sustained the policy stipulated in the origi­nal constitution that certain parliamentary seats should be reserved for ‘citizens residing abroad, who were, according to Sun Yet-san, ‘mothers of revolution’. To acknowledge their contribution and consolidate the claim that the constitutional subject of the ROC Constitution includes both domestic and overseas Chinese, this policy was enshrined in the Constitution from the very beginning. From this perspective, the continuance of this policy is to maintain the composition of the constitutional subject as it was in Nanjing in 1947. Moreover, the Control Yuan, which is modelled on the Censorate, a high-level supervisory agency in ancient China,^[809] remains untouched, despite the call to repeal it. Besides, the Mongolian and Tibetan Affairs Commission remained untouched until 2017. This implies that Mongolians and Tibetans were still regarded as part of the constitutional subject of the ROC Constitution, and the Chinese constitutional identity persists even after democratisation. Finally, the Court is granted the power to dissolve a politi­cal party if its goals or activities endanger the existence of the Republic of China. Initially, this power was mainly to check the DPP, which attempts to declare the independence of Taiwan and enact a brand new constitution.^[810]

In addition to constitutional text, judicial decisions continue to undergird the Chinese constitutional identity by invoking original intent and Chinese history. For example, in a drug case that involved the death penalty, the Court opined that: ‘ From the end of the [Q]ing Dynasty to the founding of the Republic of China, a period of nearly a hundred years, narcotics had a profound and negative impact on our nation.’^[811] Evidently, the constitutional identity perceived by the justices refers to the Chinese constitutional identity that inherited imperial China. This notion further supported the argument that ‘pre-revolutionary traditions are not completely eradicated but transformed and selectively incorporated into the new order’.^[812] In addition to majority opinions, individual justices sometimes invoke the original intent to support their contentions in separate opinions. In Interpretation No 392, for instance, Justice Sun appealed to the May Fifth Constitutional Draft to refute the majority opinion in his dissenting opinion, as did Justice Wu in Inter­pretation No 404. Finally, the Court maintained that agreements between Taiwan and China are not international agreements.^[813] In this connection, the Court also insisted on one-China ideology in which the PRC is not recognised as a foreign country.

Although no super statute fundamentally transforms the constitutional understanding in Taiwan, some statutes do play an important role in shaping the constitutional identity. Required by Article 11 of the constitutional amend­ments, the legislature enacts the Act Governing Relations between the People of the Taiwan Area and the Mainland Area, in which it also clearly identifies national unification as one of the ultimate goals. Both the constitutional mandate and the Act become the straitjacket of the Taiwan independence movement by repeatedly stressing the Chinese constitutional identity. Finally, the role of the so-called 1992 Consensus, which endorses the one-China policy, cannot be ignored. Notwith­standing the controversy over its existence and content, the 1992 Consensus has been espoused by both the CCP and the KMT. In accordance with the ROC Constitution, former President Ma Ying-jeou has emphasised that both mainland China and Taiwan are parts of China, although there is disagreement as to which China it is.

In a nutshell, the constitutional subject in the ROC Constitution includes not only local Taiwanese and mainlanders but also overseas Chinese and Mongolians. It follows that the identity of such constitutional subject will inevitably be Chinese. Behind the Chinese constitutional identity is a constitutional framework that gener­ally embodies the one-China paradigm and the constitutional theory of Sun Yet-san.

ii. The Taiwanese Constitutional Identity

Not until the late 1980s did the Taiwanese constitutional identity gradually emerge. Nevertheless, the Taiwanese constitutional identity is growing steadily, and the pace is becoming increasingly rapid. Interpretation No 261 is the most pivotal decision in terms of democratisation and the inception of the Taiwanese constitutional identity. In this decision, the Court has realised that interpreting the Constitution in light of the Chinese constitutional identity is onerous and anachronistic. In this decision, the Court encountered the same issue it had already ruled in the aforementioned Interpretation No 31: whether national elections can be suspended indefinitely as a result of national cataclysm. In the prior decision, justices endorsed the suspension; this time, they mandated a new national elec­tion and designated a date before which all old representatives should step down. 'Ihe Court essentially nullified the Temporary Provisions, and the nullification indicates the weakening of the Chinese constitutional identity for three reasons.

First, the constitutional subject must ‘forge its identity through the medium of a constitutional discourse' that ultimately predicates on open-ended contexts and subjects to transformations,^[814] and Interpretation No 261 serves as the criti­cal constitutional discourse that officially recognises this transformation. Decades after the Chinese civil war, the Taiwanese speak in the name of ‘We the People' in Taiwan now. The Court correctly recognised that the constitutional subject of the Constitution has changed dramatically, and the term ‘national elections' from then on refers to elections held in Taiwan, but not in China. Second, the Tempo­rary Provisions were written by representatives elected from mainland China. The passage of this quasi-constitutional amendment had little to do with the Taiwanese people; instead, it was used to oppress their will. Third, the Temporary Provisions abolished the term limit of presidents to prolong Chiang Kai-shek's dictatorship, which was built on the fantasy of the one-China policy. Its nullification implied the end of such a myth and the possibility for Taiwan to become a normal state. In short, the most important result this decision brought about is that it re-inter- prets the one-China paradigm and ‘brings the system in line with the [Taiwanese] people's will'^[815] in addition to precipitating democracy in Taiwan.

Echoing this decision, politicians have passed constitutional amendments seven times in which many revisions further confirm the rise of the Taiwanese constitutional identity. First, it distinguishes Taiwanese people from Chinese people, and all political powers are reserved for the former. In addition, the origi­nal Constitution adopted a parliamentary system, according to which the President has only ceremonial powers and is elected indirectly. Currently, the President is popularly elected by all Taiwanese and wields immense powers, a crucial change that has resulted in the ‘Taiwanisation' or ‘localisation'^[816] of the ROC Constitution. This reinforced the legitimacy of both the KMT and the Constitution domestically. Furthermore, the constitutional amendment essentially repealed Taiwan Province, which was a legacy of the one-China paradigm. Finally, parliamentary seats that were reserved for racial groups in frontier regions are now reserved for indigenous people in Taiwan. Theoretically, the allocation of parliamentary seats should reflect the composition of ‘We the People' to ensure democratic accountability. Therefore, the constitutional revision in this part suggests that the Constitution has recog­nised the change of constitutional subject. In sum, about one-quarter of original constitutional provisions have been replaced by constitutional amendments after seven rounds of constitutional revision. The scale and content of constitutional revision further facilitate establishing the Taiwanese constitutional identity.

In a Deutsche Welle interview, former President Lee commented the symbolic meaning of constitutional amendments, maintaining that: ‘The 1991 constitutional amendments have designated cross-strait relations as a state-to-state relationship or at least a special state-to-state relationship, rather than an internal relation­ship between a legitimate government and a renegade group, or between a central government and a local government.' Being President of the ROC at that time, his speech was not only a personal opinion, but also one kind of authoritative inter­pretation made by a constitutional organ.

In addition to Interpretation No 261, other judicial decisions also helped cultivate the Taiwanese constitutional identity. In 1993, the Court faced the issue of demarcating the territorial boundaries of the ROC. Given the political real­ity and the impossibility of recapturing mainland China, whether the territory of the ROC includes mainland China and Mongolia became a sensitive issue during the early stages of democratic transition. Although the Court strategically avoided answering this question by invoking the doctrine of political question,^[817] the reluc­tance itself is telling. As a corollary, this issue must eventually be settled by the Taiwanese people themselves because the judiciary has decided not to decide. Moreover, the Court mandated that the current ROC government in Taiwan did not need to pay the debts owed by the ROC government in mainland China before the retreat.^[818] The reasoning implicitly indicated that the ROC in Taiwan was no longer the ROC founded in Nanjing. Finally, the Court ruled that the term ‘Repub­lic of China' was no longer required to be included in the name of nationwide organisations. Although the Court based its reasoning on procedural grounds, this decision further proved that the Chinese constitutional identity had gradually faded away.

In addition to government structure, the definition of citizens also reflects the change in constitutional identity because citizens are the core element of the constitutional subject.^[819] In this regard, the Court had justified the distinction of citizens based on national origin, a suspect classification that usually demands strict scrutiny.^[820] To illustrate this, Chinese people who have converted and become Taiwanese citizens are treated differently from citizens born in Taiwan, even in the domain of fundamental rights. In 2006, the Court ruled that Taiwanese citi­zens who were born in China cannot serve public roles unless they have had a household registration in Taiwan for 10 years because of concerns over their loyalty. Even though this rule is discrimination based on national origin, the Court upheld the law, arguing that people with Chinese national origin ‘may not be as familiar with the constitutional structure of a free democracy as the Taiwanese people’.^[821] The Court averred that some of the most suspicious forms of discrimina­tion can be justified because Chinese people per se are not regarded as Taiwanese people, constitutionally speaking. The constitutional subject embodied in the current ROC Constitution clearly excludes certain Taiwanese citizens of Chinese national origin unless some conditions are met, let alone people with the national­ity of the PRC. In this decision, the Court applied what Professor Rosenfeld called ‘negation’ to carve out a constitutional identity.^[822] Other decisions dealing with similar issues include Interpretation Nos 497, 558, 710 and 712. None of these decisions articulates the relationship between China and Taiwan, but all implic­itly recognise that these two jurisdictions are separate and controlled by different sovereign governments.

The enactment of the Indigenous Peoples Basic Law and the signature of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) also shape the constitutional subject in Taiwan. For one thing, the Basic Law entrenches the equal status and autonomy of indigenous people. Combined with the reserved seats in congress, indigenous people have been recognised as part of the constitutional subject. Furthermore, the signature of international conventions and the passage of the Act to Implement the ICCPR and the ICESCR also suggest that transnational constitutionalism has taken place in Taiwan.^[823] The Court and individual justices have referenced international treaties both in the majority and separate opinions. The convergence of international human rights law and the Constitution, either through statutory incorporation or judicial interpretation, has crafted a new constitutional identity for the Taiwanese people.

Finally, the role of popular constitutionalism^[824] must not be ignored. Many scholars have pointed out that the power of constitutional interpretation should not be monopolised by either politicians or judges.^[825] In Taiwan, social move­ments have played a substantial role in the process of constitutional construction. Starting from the Wild Lily movement, which ultimately resulted in the first direct national election, cause lawyers and non-governmental organisations (NGOs) have successfully used litigation as a strategy to bring about social change.^[826] Civic constitutionalism reached its zenith in the 2014 Sunflower Movement, which ‘demonstrated a continuous civil engagement in the process of democratic constitutional reform’.^[827] Despite their different appeals, most of these social move­ments aim to consolidate the Taiwanese identity.

In sum, the constitutional subject now includes not only native Taiwanese but also mainlanders and indigenous people. In contrast to the one-China paradigm implied by the Chinese constitutional identity, the Taiwanese constitutional iden­tity originates from the rise of Taiwan consciousness. It prefers the traditional presidential system to the grotesque five-branch model plus a national assembly and a nominal president. Instead of sticking to the framers' intent, it embraces and incorporates multiculturalism and international human rights conventions into the constitutional order.

D. Interaction between Constitutional Identities and National Identities

Some may still doubt whether the Taiwanese constitutional identity is indeed a constitutional identity distinct from the Chinese constitutional identity. The answer ultimately hinges on the role of the Constitution in people's lives, because a constitutional identity is ‘a constitutive narrative through which people imagines themselves as a people, with shared memories, goals, aspirations, values, duties, and ambitions'.^[828] In this light, people who embrace the Taiwanese constitutional identity obviously share completely different ‘memories, goals, aspirations, values, duties, and ambitions' from people who still possess nostalgia for China.

Regarding the interaction between constitutional identity and national iden­tity, the rise of the Taiwanese national identity is undoubtedly much earlier than the formation of the Taiwanese constitutional identity. During the authoritarian period when the Constitution was suspended and the Court was deferential, the Taiwanese constitutional identity was unlikely to sprout. At that time, consti­tutional identity was exclusively Chinese, which obstructed the awakening of Taiwan consciousness. However, after Interpretation No 261, the two developed symbiotically: the rise of Taiwan consciousness provides alternative imagination of constitutional identity, whereas the growth of the Taiwanese constitutional identity provides legal ammunition for the discourse of Taiwan independence movement.

Specifically, the most pivotal reason that contributes to the formation of the Taiwanese constitutional identity is the surge of Taiwanese consciousness. In addition to the aforementioned political events, the Taiwanese media^[829] and local literature^[830] also play an influential role in crafting Taiwanese identity. Public opinion surveys show that an increasing number of people see themselves as Taiwanese rather than Chinese.^[831] Of course, the percentages fluctuate, depend­ing in part on ethnicity,^[832] but the trend is undisputable: ‘ The popular aspiration for an independent Taiwan became increasingly crystallized and cohesive at the close of the 20th century.'^[833] The Taiwanese constitutional identity contributes to, and simultaneously results from, the transformation of national identity from the one-China paradigm to an independent Taiwan Republic. However, this relation­ship is unsatisfying to some radicals, who have suggested that any constitutional identity under the regime of the ROC Constitution will ultimately be Chinese. In fact, the DPP government did endeavour to enact a new Taiwan constitution, but the project was eventually aborted because it did not garner sufficient popular support at that time. Admittedly, the final goal may be the perfect combination of national identity and constitutional identity. However, before that, this one- step-at-a-time strategy may be more practical under the shadow of military inva­sion from the PRC.^[834]

Notably, the Taiwanese constitutional identity is not simply a byproduct of Taiwanese independence movement. Constitutional identity is distinct from national identity because ‘the “We” who gives itself a constitution must project beyond itself’.^[835] The Taiwanese constitutional identity originated from Taiwan consciousness that opposes the one-China paradigm. Nevertheless, the constitu­tional subject in Taiwan includes not only native Taiwanese but also indigenous people and mainlanders who come to Taiwan. Moreover, the incorporation of international human rights has become an important dimension of the Taiwanese constitutional identity, but some pro-independence activists may still reject it. Same-sex marriage and the abolition of death penalty are two paradigmatic exam­ples. In a word, constitutional identity refers to the attachment to constitutional norms, values and principles. Conceptually, it is not identical to national identity.^[836]

The development of the Taiwanese constitutional identity cannot neatly fit into the prototypes of the major constitutional and constitutional-making modes. Unlike former colonies in Africa and Asia, Taiwan did not enact a brand new constitution after the Second World War or after democratisation. The Taiwanese constitutional identity is not created ex nihilo, but emerges gradually through constitutional change. It is also different from the American model^[837] in the sense that constitutional promulgation did not result in the establishment of a new country. Furthermore, unlike France or Germany, Taiwan has never been a state that was based either on demos or ethnos^[838] before revolution.

In essence, the Taiwanese constitutional identity is sui generis precisely because neither a Taiwan Constitution nor a Taiwan Republic exists. Both are unlikely to happen in the near future. Internationally, the PRC still insists that Taiwan is part of China, and the Preamble of the PRC Constitution plainly claims as much. Domestically, neither can garner enough popular support, partly because of China's military intimidation. Taiwan is still a very divided society in which consensuses regarding both issues are insufficient. The attitude of many Taiwanese remains ambiguous and practical: they prefer the status quo to imme­diate independence, and unification with China is the least of their priorities. Given that enacting a Taiwan constitution and founding a Taiwan republic are difficult to achieve, building the Taiwanese constitutional identity in the ROC Constitution becomes the best available choice, at least in the short term. In this sense, the Taiwanese constitutional identity in the ROC Constitution is not only a compromise between people with heterogeneous imaginations towards national identity, but is also an interim goal of the Taiwan independence move­ment. Taiwanese people's attitudes toward the national flag vividly portray this point. At one time, the national flag was regarded as an emblem of the Chinese constitutional identity because it was derived from the party flag of the KMT. Nevertheless, an increasing number of people, including the DPP supporters, accept it as a symbol of the Taiwanese constitutional identity when facing inter­national communities, particularly the PRC. This transformation epitomises the complexity of constitutional identities in Taiwan.

From this perspective, the ROC Constitution and the Taiwanese constitutional identity are mutually dependent: the endurance of the ROC Constitution should be partly attributed to the effort of Taiwanisation; and the Taiwanese constitu­tional identity is recognised through the constitutional amendments and judicial decisions. By contrast, today only a few people still espouse the Chinese national identity and think of themselves as Chinese rather than Taiwanese. In a series of surveys, the overall proportion of people who identify themselves as Taiwanese has increased substantially over the course of the past two decades, and this pattern takes place across ethnic lines and party affiliations.^[839]

Still, some remnants of the Chinese constitutional identity are deeply rooted in the Constitution, even though they have been marginalised from mainstream society. The two constitutional identities are ideologically antagonistic, but neither can effectively eliminate the other.

IV.