Constitution Day and Constitutional Government

薛化元/Hsueh Hua-yuen

e02_20011224_1224Beginning in 1949, Taiwan was under martial law rule for 39 years.
The martial law rulers’ Constitution-usurping issuance of all manner
of executive orders did great damage to constitutional government.


  On December 25, 1945, the government of the Republic of China proclaimed the establishment of the ROC Constitution. Nevertheless, the “Period of Mobilization for the Suppression of Communist Rebellion” declared in July of that same year was not thereby in the least abrogated. Although establishment of the Constitution was commemorated every year thereafter, in actuality, the political system thus established violated the operational principles of a democratic constitutional system of government. Although the Period of Mobilization for the Suppression of Communist Rebellion ended in 1990, the first direct popular election of the president in 1996, and the first transition of ruling parties in 2000 have demonstrated a tremendous advancement in Taiwan’s democratic governance, the entire system of division of powers within the government continues to manifest contradictions, rendering it difficult for the government to function effectively, and necessitating institution of constitutional reforms. For this week’s Window on Taiwan, the Taiwan News has invited Professor Hsueh Hua-yuan of the National Cheng Chih University Graduate School of History to examine the development of constitutional government over the past half century and consider possibilities for its future development.



Frankenstein marriage of Constitutional law and “
Mobilization for the Suppression of Communist Rebellion”

  On October 25, 1945, Taiwan came into the receivership of the government of the Republic of China. As the Republic of China of the time was ruled by the one-party “practice government” regime of the Kuomintang [envisaged by revolutionary KMT cum ROC founder Sun Yat-sen as a transitional stage of government leading to establishment of a full-blown democratic system], Taiwan thus too entered the “practice phase” of government. In 1947, the February 28 Incident occurred [which sparked a popular uprising against the corrupt KMT administrators in Taiwan, as the consequence of which the KMT rounded up and executed several thousand Taiwanese, including many intellectuals], and in July of the same year, the ROC government declared the beginning of the “Period of Mobilization for the Suppression of Communist Rebellion,” taking the General Mobilization Law and related regulations as its foundation, thus placing Taiwan under an “extraordinary system” of governance. Although the ROC government proclaimed the establishment of its Constitution on December 25, 1947, the already-existing extraordinary system did not thereby undergo any change. Thereafter, with the government operating nominally under constitutional law coexistent with a system of Rebel Suppression laws, a truly constitutional system of governance could not be actualized, and the government could merely stagger forward, never able to get on track.


  Needless to say, with the end of the Period of Mobilization to Suppress the Communist Rebellion in 1990, and the beginning of legislative elections for all seats [in both the Legislative Yuan and the National Assembly], Taiwan’s democratization made a big leap forward. And with the first direct popular election of the president in 1996, the first transition of ruling parties in 2000, as well as the successive decisions of the Grand Justices proclaiming the unconstitutionality of originally existing restrictions on freedom of speech and freedom of the press, human rights also made great progress. Despite these developments, the entire system of division of powers within the government is still rife with contradictions, creating impediments to the effective functioning of government. There remains, therefore, a need to take a step further and push forward constitutional reform. However, inasmuch as fundamental constitutional problems are intimately related to the originally envisaged constitutional norms and to concrete experienced in acting on it, it is necessary to examine and analyze the development of constitutional governance over the past half century, and to then deliberate the direction of its future development in all aspects.



Structural problems in the Constitutional legal system

  Basically speaking, at the outset of institution of the Constitution in 1947, besides coming up against the system of government under the Mobilization for the Suppression of Communist Rebellion, the internal structure of constitution manifested severe deficiencies. In particular, although the Constitution constituted a reform of the “democratic centralism” of the original May 5 [1936] Draft Constitution — whereby power was concentrated in the presidency and the National Assembly (similar in function to the USSR’s Supreme Soviet) — in order to transform it into a constitutional system more in keeping with ideal norms of democratic constitutional governance, under the authoritarian rule of the Kuomintang, various provisions of the Constitution could not be implemented, even to the extent that the design of the actual governmental system manifested many blatantly unconstitutional conditions. For example, prior to 1978, district courts and high courts fell under the jurisdiction of the Executive Yuan, very clearly violating the norms of a democratic constitutional government. Although with regard to such an obviously unconstitutional modus of political operations, most observers have blamed the Mobilization for the Suppression of Communist Rebellion Provisional Act for wreaking havoc on the normal functioning of Constitutional law itself, when examined in the light of the actually circumstances of historical development, it is found this problem cannot be fully explained in terms of the Provisional Act. Below, we begin with the Provisional Act in an attempt to clarify the fundamental source of problems in the development of our country’s system of constitutional governance.



The Provisional Act: Vehicle for expanded powers of government leaders

  The First Session of the National Assembly convened in 1948 enacted the “Mobilization for the Suppression of Communist Rebellion Provisional Act.” In substance, its articles stipulated that, under the condition of approval by the a General Meeting of the Executive Yuan, the President could declare emergency measures not subject to the original limitations of constitutional law or by the Emergency Edict Law. While this action was worrisome for its expansion of executive powers, this legal act was directly employed only a few times — at the times of the currency reform of 1948, the August 7 flood disaster of 1957, the U.S. recognition of the People’s Republic of China in 1978, and the death of President Chiang Ching-kuo in 1988. In terms of actual governmental operations, it did not inflict any ongoing, fundamental harm to the normal development of constitutional governance.

e02_20011224_1224_1In 1986, Cheng Nan-jung launched a “May 19 Green Action,”
in the course of which several hundred people confronted police
for 12 hours at Lungshan Temple, demanding the end of martial law
and protesting enactment of the National Security Law.


  But after passage of the Provisional Act, due to the insufficiency of the number of National Assembly members after the ROC government’s removal to Taiwan, there was no possibility of [legally] amending the Constitution or altering the Provisional Act. In 1960, with the need to justify serving an additional term of office, Chiang K’ai-shek further damaged the development of constitutional governance: In that year, based upon an interpretation of the Judicial Yuan Grand Justices, the number of legally stipulated National Assembly members was greatly reduced in order to carry out revision of the Provisional Act and to enable the president to serve additional terms of office until his death, thus sidestepping the constitutional limitation on the number of consecutive terms of office of the president. More significantly, with the establishment of this precedent, a revision of the Provisional Act in 1966 further undermined the system of constitutional governance, empowering the president to set up a special organization for mobilizing to suppression rebellion, thus establishing a national administrative system centered upon a president-led National Security Council granted plenary powers superior to those of the Executive Yuan, and authorizing the president to make changes in the organization and powers of administrative and civil service examination agencies, therein giving the president unprecedented power.


  Although along with this severe damage to the original constitutional order, provisions were made for the so-called “First Election of Supplemental and Replacement Legislative Representatives” [“supplemental” referring to election of additional legislators representing local Taiwan districts; “replacement” referring to election of new legislators replacing deceased legislators nominally representing districts in mainland China], thus enabling a small number of local Taiwanese elite to enter into the national legislative organization, this representation constituted a miniscule force within the overall order, and the reformative significance of these provisions was quite limited.


  Although the final 1972 revision of the Provisional Act established a system for supplemental legislative seats, it nevertheless also set a legal precedent for granting unlimited terms of office to the legislative representatives of mainland China constituencies. The Provisional Act thus became the major impediment at the time Taiwan was endeavoring to institute new elections for all representatives. From another point of view, however, it may be said that at least, this damage to the system of constitutional governance still retained a semblance of being based upon constitutional norms. Of more serious concern was the fact that at that time [1972], the greatest source of damage to constitutional governance was the tendency of government administrators to do as they pleased with no legal foundation whatsoever, employing their administrative deliberations to rampantly usurp the law.


  With respect to this phenomenon, the aforementioned treatment of district and high courts as being under the jurisdiction of the executive branch is a particularly egregious unconstitutional arrangement; and even after the Grand Justices formally interpreted it as unconstitutional in 1959, the power holders totally ignored it. Moreover, as in the case of the question of local autonomy stipulated by the ROC Constitution, the ruling Kuomintang stubbornly, and without the least legal justification, jettisoned the stipulations of constitutional law, employing administrative deliberations and decision-making and executive directives to institute its own, nominal version of “local autonomy.” Perhaps it is this style of administrative action, based solely upon the rulers’ personal judgements and opinions, utterly ignoring any systematic constitutional tradition, which is the historical heritage that should be confronted on the occasion of Constitution Day commemoration.



The patchwork alteration process of constitutional amendment

  On the other hand, although post-1990 constitutional reforms have to a certain extent ended the system of government mandated by the Provisional Act, making the “Period of Mobilization for the Suppression of Communist Rebellion” a thing of the past and making democracy feasible, and despite having indeed made a positive and undeniable contribution to the development of constitutional government in Taiwan, over the course of successive amendments to the Constitution, willy-nilly patchwork alterations have been the rule. In particular, downsizing of the Taiwan Provincial Government and reform of the National Assembly have still left us with lingering “rump issues” to deal with, requiring further reforms. And the question of government structural organization is even more critically in need of attention, inasmuch as a system of balances of power and a constitutional system of governance with clear distinctions of authority and responsibility have yet to be established, bringing into existence a so-called “dual head-of-state system” still unable to live up to the constitutional system design of its foreign originators while leaving many legal gaps unfilled — even to the extent of posing a constitutional crisis for our country.



Establishing a system of constitutional government in conformance with Taiwan’s needs

  Regardless of whatever historical baggage has contributed to the present state of constitutional governance in Taiwan, it is of critical importance to go a step further and consider, with respect to reform of constitutional government, how we should go about deliberating and making decisions about standards for a democratic constitutional government with proper divisions of power. In particular, the longstanding serious discrepancy between our country’s actual territorial sovereignty and its constitutionally defined territorial sovereignty, which has made it impossible to establish a Taiwan-based constitutional system of government, is a fundamental problem confronting the development of constitutional government in Taiwan. If we are to proceed further with constitutional reform, it must start out with this issue. Treating Taiwan [rather than a mythic “one China”] as its subject, acknowledging the Taiwan people as being empowered to determine the content of the Constitution, building a system of constitutional governance in conformance with Taiwan’s own needs, and bidding adieu to the baggage of the old “constitutional government tradition” constitute the sole viable path to a comprehensive, long-lasting resolution of the ills of constitutional government in Taiwan.

 Compiled and edited by Tina Lee/Translated by James Decker