Constitution of the Republic of China
The Constitution of the Republic of China (中華民國憲法) is currently the basic governing document for the areas controlled by the Republic of China, namely all of Taiwan Province, Taipei and Kaohsiung municipalities, and Kinmen county and part of Lienchiang county of Fujian Province. The constitution itself was drafted before the fall of Mainland China to the Communists, and was in part drafted as a means of creating a coalition government between the Kuomintang and the Communist Party of China. It was adopted by the National Assembly on December 25, 1946, promulgated by the National Government on January 1, 1947, and went into effect on December 25, 1947. The Constitution was seen as the third and final stage of Kuomintang reconstruction of China.
Content
The Constitution establishes a republic with a National Assembly and five branches of government (Yuans): the Executive Yuan, Legislative Yuan, Judicial Yuan, Examination Yuan, and Control Yuan. In practice, the Examination Yuan, the Control Yuan, and the National Assembly have become marginal organizations. Although in practice, the government on Taiwan has become a presidential system, the constitution itself is unclear as to whether the system is intended to be presidential or parliamentary and this has lead to some deadlock when, as after the 2000 Presidental elections, the legislature and presidency was held by different parties.
Although the constitution foresaw regular democratic elections, these were not held until the 1990s. On April 18, 1948, the National Assembly added to the Constitution the "Temporary Provisions Effective During the Period of Communist Rebellion." These articles greatly enhanced the power of the president and abolished the two term limit for the president and the vice president. In 1954, the Judicial Yuan ruled that the delegates elected to the National Assembly and Legislative Yuan in 1947 would remain in office until new elections could be held in Mainland China which had come under the control of the Communist Party of China in 1949. This judicial ruling allowed the Kuomintang to rule unchallenged in Taiwan until the 1990s. In 1991, these members were forced to resign by a subsequent Judicial Yuan ruling.
In the 1970s, supplemental elections began to be held for the Legislative Yuan. Although these were for a limited number of seats, they did allow for the transition to a more open political system.
In the late 1980s, the Constitution faced the growing democratization on Taiwan combined with the mortality of the delegates that were elected in 1947. Faced with these pressures, on April 22, 1991, the first National Assembly voted itself out of office, abolished the Temporary Provisions passed in 1948, and adopted major amendments (known as the "First Revision") permitting free elections. On May 27, 1992 several other amendements were passed (known as the "Second Revision"), most notably that allowing the direction election of the President of the Republic of China, Governor of Taiwan Province, and municipal mayors. Ten new amendments to replace the eighteen amendments of the First and Second Revisions were passed on July 28, 1994. The amendements passed on July 18, 1997 streamlined the Taiwan Provincial Government and granted the Legislative Yuan powers of impeachment. The constitution was subsequently revised in 1999 and 2000, with the former revision being declared void the same year by the Council of Grand Justices.
Criticism
Until the 1990s, the document was considered illegitimate by most supporters of Taiwan independence because of the fact that it was not drafted in Taiwan. However, the document gained more legitimacy among independence supporters throughout the late 1980s and early 1990s and it is now accepted as the basic law of Taiwan by all of the major parties.
A number of criticisms have been leveled at the ROC constitution. One which has been leveled by supporters of Taiwan independence argues that the constitutional while valid as law, is still illegitimate in that it has never been ratified by people within Taiwan.
Another criticism, which has more broad support is that the constitution produces deadlock between the legislature and the executive. Because it was written in the context of an authoritarian government, it is not explicit as to whether the ROC government is presidental or parliamentary.
Constitutional Referenda Proposals
One recent controversy involving the ROC Constitution is the right to referendum which is mentioned in the Constitution. Although the right is present, implementing legislation had been blocked until October 2003 by the pan-blue coalition largely out of suspicions that proponents of a referendum law would be used to overturn the ROC Constitution and provide a means to declare Taiwan independence.
In 2003, President Chen Shui-bian proposed holding a referendum in 2006 for implementing an entirely new constitution on May 20, 2008 to coincide with the inauguration of the 12th-term president of the ROC. Proponents of such a move, namely the pan-green coalition, argue that the current Constitution endorses a specific ideology (i.e., the Three Principles of the People), which is only precendented in Communist countries; in addition, they argue that a more "efficient" government is needed to cope with changing realities. Furthermore, the current Consitution explicitly states before the amendements implemented on Taiwan, "To meet the requisites of the nation prior to national unification...", in direct opposition to the pan-green position that Taiwan must remain separated from the mainland. In response, the pan-blue coalition dropped its opposition to non-constitutional referendums and offerred to considered through going constitutional reforms. A referendum law was passed in October 2003, but this law sets very high hurdles against implementing constitutional changes by referenda.
The proposal to implement an entirely new constitution met with strong opposition from the People's Republic of China and great unease from the United States, both of which feared the proposal to rewrite the constitution to be a veiled effort to achieve Taiwan independence and to circumvent Chen's original four noes and one without pledge. In December 2003, the United States announced its opposition to any referendum that would tend to move Taiwan toward independence, a statement that was widely seen as being directed at Chen's constitutional proposals.
After January 2004, Chen no longer spoke as often in terms of writing a new constitution and only in terms of constitutional reform. For there part, the pan-Blue coalition attempted to argue that a new constitition and constitutional referenda were unnecessary and that the inefficiencies in the ROC Constitution could be approved through the normal legislative process.
As a result of this, a bipartisan agreement was made to put through a series of constitutional amendments which were approved on March 19, 2004, one day before the 2004 ROC Presidental Elections. These included halving the size of the Legislative Yuan and extending its term to four years, abolishing the National Assembly and moving the power to amend the constitution to the Legislative Yuan, removing the constitutional requirement for a military draft, and decreasing the voting age from 20 to 18.