Guardian of the Constitution: The First Post-WWII Constitutional Court

The 1946 Constitution was in a unique position. Above all it was an exceptional Chinese constitution. Its unique exceptionalism was also paradoxical in the sense that its implementation was never national; rather, provincial at its best.

Table 5 Articles 78-79, 115-117, 171-173 of the Constitution

(continued)

Table 5 (Continued)

Article 172

Ordinances that are in conflict with the Constitution or with laws shall be null and void.

Article 173

The Constitution shall be interpreted by the Judicial Yuan.

As a matter of fact, back to the early 1930s, the notion of ‘constitutional court' had become a familiar topic to the constitutional framers of different political stripes. For example, in the drafting of the five-power Constitution in 1933, the framers came to a consensus to incorporate a constitutional court into the Judicial Yuan.^[186]

When it came to the late 1940s, in the wake of the defeat in the civil war, the Kuomintang Government fled to Taiwan. It not only took the Constitution, but also the constitutional court, which later proved to be the most salient and successful constitutional enforcement mechanism for the Kuomintang's five- power government on the brink of collapse. In hindsight, against the backdrop created by the Temporary Clause against the Communist Rebellion (1948-1991) and the Martial Law (1949-1987), a well-functioning constitutional court symbolised the enforced and sustained authority of the Constitution.

On this point, Chiang Kai-shek's diaries and former Vice/President of Judicial Yuan (1950-1971) Xie Guansheng's diaries provide sufficient evidence for our retro­spective examination of the constitutional enforcement. The non-constitutional amendment principle laid down by the constitutional court during Chiang Kai-shek's first presidential crisis was one typical case in the mid-twentieth century.

Before he was sworn in as the national President for the first time in May 1948, Chiang Kai-shek wrote one diary entry:

I have been worried about the politics. My failure this year to stick to my previous determination not to become the presidential candidate leads to today's embarrass­ing situation.

On a later occasion when a group of Members of the Legislative Yuan sought expansion of their terms in defiance of Chiang's earlier suggestion, Chiang publicly denounced them and declared:

I will never accept the Presidency by violating the constitution, nor will I allow any Yuan or Ministries to act unconstitutionally. For good or for bad, it is up for them to

The Longest Process: Making the 1946 Constitution of the Republic of China 75 decide. If they will again reject my proposal, there will be no other option but to submit it for the Council of Grand Justices to declare the Legislative Yuan act unconstitutional, which will invalidate the Legislative Yuan from convening again.^[188]

Implicitly, the way for him to take the presidency for a longer time was open. It would be, in Chiang's view, a constitutionally lawful way, which must provide:

1. ‘The state must need the presidential leadership to restore'.^[189]

2. It was ‘proper to convoke the National Assembly in accordance with the constitution'.^[190]

3. ‘No modifications should be made in the constitution'.^[191]

In the central committee, Chiang reiterated the importance of respecting the law and never to sacrifice the law in the heat of emotion. The loss of the country had proved it wrong otherwise. This lesson should be learned by Chiang himself and all the others.^[192] When the constitutional court paved the way for Chiang to take the presidency for a second term, a constitutional principle was established - that is, the constitutional supremacy and no constitutional amendments justifiable in support of the term expansion for Chiang's presidency.

There was a lot of drama during the 1954 presidential election. On 20 March, the first round of votes to elect the President did not produce the result. A hundred votes had been intently cast for the other presidential candidate (Xu Fulin from the Democratic Socialist Party) to encourage him to stay in the election. Because, as Chiang wrote in his diary, ‘it has been predesigned not to be elected by the first round of votes, so there was no result the same day'.^[194]

In May 1959, The Vice-President decided to organise a study group and recommended the then President of the Judicial Yuan, Xie Guansheng, to be the organiser.^[195] Xie chaired the constitutional study group's meetings and produced

the primary report regarding the presidential term problem.^[196] About two months after, Chiang invited Xie to his residence to discuss the constitutional issues. Xie recorded in his diary that he had reiterated the study group's decision after a month's study that under the no constitutional violations and no amendment principle, it would be more appropriate for the Legislative Yuan to amend the provisional clause during the anti-communist rebellion era and then submit it for the National Assembly to review and confirm (that was proposed solution No 1). The proposed solution No 2 rooted for the National Assembly to directly modify the provisional clause. This way sounded easy, but it demanded 2/3 representatives to present in the National Assembly which was impossible in Taiwan at that time. In addition, the constitutional interpretation could not be expected to randomly change the total number of representatives.

After that meeting, Xie wrote to the Vice President to ‘argue in the greatest detail for the illegality for the President to continue its term without holding a new election’.^[198] In earlier November, Chiang Kai-shek's son invited Xie to discuss the presidential term issue. Xie said, ‘regarding this issue, irrespective of variated suggestions, it could be reduced to two approaches - continue for a new term after election or without the election. The latter approach has no legal base and in fact hard to enforce’^[199] In the end, Chiang Kaishi invited Xie to his mansion again to discuss the issue. Xie reiterated his previous point of view. As Xie recorded his meeting with Chiang,

I insisted that the President continued in a new term without election will be regarded as a de facto President and inevitably suffer the smear for constitutional violations. Chiang's mind started to change. Then, Chiang said election would be okay, but this way the provisional clause must be modified in advance. Chiang further touched on the total number of the Representatives. He suggested to change the calculation standard, which could be done either by the National Assembly itself or the interpretation of the Council of Grand Justices.^[200]

On 12 February 1960, the Council of Grand Justices rolled out the interpreta­tion on the total number of the National Assembly Representatives.

On the day the National Assembly discussed the Temporary Provisions Effective during the Period of Communist Rebellion, Chiang Kai-shek met with Xie, who reminded Chiang that ‘the power (vested by the temporary provisions to the President) is extremely broad, probably unlimited, which cannot be used at will. Therefore, there is no need to request the National Assembly to confer additional powers’^[204] On 11 March 1960, the National Assembly confirmed the amendment to the provisional clause, with an emphatical point - during the anti-communist rebellion era, the President could be elected for plural terms unconstrained by the one additional term limitation under the article 47 of the Constitution.

Convinced by Xie Guansheng and his constitutional court’s decision, Chiang became adamant in fending off the requests from the National Assembly to amend the Constitution. When Chiang chaired the National Assembly’s general meeting, he ‘felt angry at the unreasonable requests from the representatives of the National Assembly’^[205] At a dinner with the representatives of the National Assembly, Chiang noticed the talks of those who supported amending the Constitution were very radical.^[206] Afterwards, Chiang again chaired the meeting with the representatives of the National Assembly, ‘in the end I spoke to them for about an hour but still a few defiant members remained not persuaded. If my speech could help convince a portion of people to leave the ‘amending the constitution’ group, this will produce more than a few good effects’.^[207] In a moment of self-reflection that weekend, Chiang wrote:

this week was crucial for the success or failure of the National Assembly. After addressing to a thousand Kuomintang representatives... the proposal to amend the constitution was rejected by a majority vote (555/588). Half of the difficulties for the National Assembly have been thus resolved.^[208]

On 20 March, Chiang Kai-shek was elected as President for the third term. Chiang took it as a triumph that he survived the legitimacy crisis to become the President for the third term. As he wrote,

since I was elected as the presidential candidate, I have felt very self-confident. This psychological feeling is totally opposite to what was felt around the time when I was first elected as the President. Back to then, I had been overwhelmed by the sense of losing; today my confidence is firm and strong because the anticipated resurrection comes closer.^[209]

This successful sense of constitutionalism generated thitherto continued for a couple of more years into the 1960s.

However, up to 1966, the National Assembly’s confirmation of Provisional Clause power invited misunderstanding and opposition from many sides, partic­ularly from the anti-Kuomintang faction. This had been totally beyond Chiang Kai-shek’s expectations.^[210] That hard view reminded Chiang of his failure in main­land China. As Chiang reflected, ‘back to the mainland era, Constitutionalism was taken advantage by the communists, which helped legalize their unlawful cohorts and generated the opportunities only for the communists to attain the victory’.^[211] With the change in mentality, Chiang was elected President for the fourth time in 1966. This time, he lost the interest in the presidency. As his diary revealed, ‘Today I was elected the President for the fourth term, but I feel even more depressed and overwhelmed, not having even a minimum sense of buoyancy’.^[212] As described above, by the mid-1960s a fast-growing and much stronger govern­ment in the mainland had already shattered Chiang’s dream of retaking mainland China and shook the foundation for Chiang’s legitimacy in representing Chinese people in the UN. Nonetheless, he should have felt lucky that his government did not degrade from statelessness into lawlessness.

Above all, the constitutional court was strong in the mid-1960s. The presi­dency was also strong with the safeguards from the Judicial Yuan’s constitutional interpretations. With a stable presidency and the constitutional court acting as a well-established guardian of the Constitution, Chiang’s five-power Constitution survived in the island of Taiwan.