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One Constitution, Separate Interpretations: The "One-China" Framework in Taiwan's Constitutional Order
Chien-yuan Tseng, Chung Hua University

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Following the fifth legislative election, former Kaohsiung City mayor Hsieh Chang-ting was appointed by President Chen Shui-bian and swore in as premier on February 1 last year. Faced with social divisions, as well as the cold peace between the two sides of Taiwan Strait, as a result of several severe national/ethnic identification confrontations since the time power changed hands, Premier Hsieh proposed the policy concept of ¡§reconciliation and coexistence, negotiation and dialogue¡¨ in his earnest attempt to create new opportunities for national development. The domestic and international circumstances trying Premier Hsieh's administration, however, are exceptionally harsh.

First of all, immediately after the curtain of the legislative race fell December last year People's Republic of China (PRC) announced its intent to enact the Anti-Cessation Law as the legal basis for waging warfare against Taiwan. The purpose of the Anti-Cessation Law is to reiterate PRC's determination to reinforce its One-China Policy. Article 2 of the law provides, "There is only one China in the world. Both the Mainland and Taiwan belong to the same China. Cession of sovereignty and territory of China will not be tolerated. Taiwan belongs to China. The government will not allow Taiwan independence powers to separate Taiwan from China under any names or through any approaches. Article 8 further declares, "In the event where Taiwan independence powers attempt to separate Taiwan from China under any names or through any approaches, or where major events take place that may cause Taiwan to be separated from China, or where all possibilities of peaceful reunification are ruled out, the government may take non-peaceful measures or any other measures to protect the integrity of its sovereignty and territory. Then, in his pursuit of reconciliation among different political parties and racial groups at a time when the entire nation was seething with the cry for enactment of a law to counter the Anti-Cessation Law, President Chen Shui-bian met with People First Party president Sung Chu-yu in February last year. The two signed a ten-point statement declaring that ¡§the national status defined by the Constitution of the Republic of China shall be in accordance with the realistic and legal status quo of cross-strait situations, and the sovereignty of the Republic of China must be recognized and respected by both sides of Taiwan Strait and the international community,¡¨ that ¡§¡¥abiding by the Constitution,¡¦ ¡¥maintaining the status quo¡¦ and ¡¥creating peace together¡¦ shall be the highest principles for dealing with cross-strait relations, and for the peace between both sides of Taiwan Strait President Chen promises he will not declare independence, change the name of the nation or promote inclusion of the ¡¥two-nation theory¡¦ in the Constitution,¡¨ that ¡§in order to enhance the nation¡¦s overall competitiveness and the government¡¦s administrative efficiency it is necessary to seek consensus between the ruling party and the opposition parties and to campaign for a constitutional reform that does not involve changes in the sovereignty or territory of the state or in the status quo of cross-strait situations.¡¨ President Chen¡¦s falling back from his commitment to legalizing Taiwan independence was criticized by for-independence groups and individuals. But, through this President Chen made it clear that his position on Taiwan¡¦s national status and cross-strait relations is based on the Constitution of the Republic of China.

As Democratic Progressive Party (DPP) was pushing for the March 26 demonstration against the Anti-Cessation Law in conjunction with the private sectors, Kuomintang (KMT) announced its ¡§Reminiscence Pilgrimage¡¨ led by vice chairman Jiang Bing Kun, which was a major setback in Taiwan¡¦s attempt to counter the Anti-Cessation Law. Then in April KMT chairman Lien Chan set foot on the Mainland for his ice-breaking tour and met with Hu Jintao, General Secretary of the Central Committee of the Communist Party of China (CPC). The two released a declaration entitled ¡§Shared Visions for Peaceful Cross-Strait Development,¡¨ outlining ¡§Persistence in September 2 Consensus and Opposition to Taiwan Independence¡¨ as the communal position of KMT and CPC. Sung Chu-yu followed suits in May and reached six agreements with Hu Jintao mainly on the stance that ¡§both sides of Taiwan Strait explicitly express their insistence in the One-China Principle¡¨ interpreting the September 2 Consensus on the ¡§Two-Side but One China¡¨ basis, that both People First Party (PFP) and CPC ¡§oppose Taiwan independence¡¨ and ¡§are firmly against any truce-breaking activities, such as ¡§name rectification,¡¨ ¡§referendum¡¨ and ¡§constitution enactment¡¨ movements.¡¨ KMT, PFP and CPC referred to the September 2 Consensus as the foundation for positioning cross-strait relations. DPP, the ruling party of Taiwan, denies the existence of the September 2 Consensus, however. KMT has maintained that the content of the September 2 Consensus is ¡§One-China, Individual Expressions.¡¨ Yet before the visit of Lien Chan, CPC did not express its explicit consent to this interpretation. Hsu Chi, former minister of Mainland Affairs Council, pointed out that PFP¡¦s ¡§Two-Side but One China¡¨ concept fails to place the expressions of both sides on equal grounds. But reading between the lines of the PFP-CPC agreement we can find a major breakthrough; that is, CPC allows PFP to develop the ¡§Two-Side but One China¡¨ consensus with positions of both sides listed concurrently and include it in a formal document as one of the prerequisites to ¡§Two-Side but One China.¡¨ During his home-coming press conference, Sung Chu-yu interpreted ¡§Two-Side but One China¡¨ as ¡§two sides of Taiwan Strait expressing the concept of one-China, constitution-based one-China, individually,¡¨ arguing that it is ¡§completely in line with the first consensus of Bian-Sung talk and the practical situation.¡¨ The idea of ¡§two sides of Taiwan Strait expressing the concept of one-China individually¡¨ is more specific than ¡§Two-Side but One China.¡¨ It can, therefore, fully respond to the criticism of KMT. Whether the first consensus of Bian-Sung talk, ¡§the national status based on the Constitution of the Republic of China,¡¨ refers to ¡§constitution-based one-China¡¨ or ¡§Two-Side but One China¡¨ is yet to be defined. At least Sung Chu-yu has made it clear that his one-China position is founded on the Constitution of the Republic of China.

With the consensus it formed with KMT and PFP, CPC began to influence Taiwan¡¦s politics. The effect was immediately seen during the election for the mission-oriented National Assembly for the 7th constitutional amendment. In its pro-CPC six agreements, PFP defined the referendum as detrimental to cross-strait peace. Democratic Action League joined the cause. Both were against the constitutional amendment maintaining the referendum system (for introduction of constitutional amendments) is in fact paving the way for Taiwan to be legally independent of China. KMT and DPP disagreed arguing that the referendum for introducing constitutional amendments is a change of the procedures for amending the Constitution and a reform to give the power back to the people. Following the KMT-CPC talk KMT has to certain extent played the role of CPC spokesman in Taiwan. KMT¡¦s support of the referendum completely offset the anti-constitutional amendment forces. As CPC objected no more to the referendum, the issue was gradually severed from Taiwan independence problems in cross-strait relations. This was a surprise accomplishment of KMT out of its Mainland visit, which enhanced mutual understanding of both sides of Taiwan Strait.

After the 7th constitutional amendment, the procedures for constitutional amendment and territorial change proposals remain the same. Both have to be brought up by the Legislative Yuan for sanction by people of the emancipated region of the Republic of China through referendums. In order for a proposal to pass, the total valid approval votes must be over 50% of all the qualified voters. This threshold for constitutional amendment referendum is extremely high. Take the last defense referendum for example. It takes only half of all the qualified voters to vote and half of the votes cast for a proposal to pass the defense referendum. Yet the last defense proposal did not pass the referendum even though it was held in conjunction with the 11th presidential election at a time when the nation was highly mobilized. From the fact that during the election of National Assembly members for the 7th constitutional amendment only 23% of the voters turned out to vote, we know even if a referendum is conducted along with a political race as competitive as the presidential election, it would still be very difficult to have half of all the qualified voters show up to vote and to win half of the votes cast, let alone the constitutional amendment referendum, of which the threshold is even higher and the issue more specialized. The saying that the 7th constitutional amendment will probably be the last one is not possible.

Under the new leadership of Hu Jintao, PRC government has become more flexible. Taking occasion of Taiwan¡¦s internal struggles, it began to befriend Chinese nationalists of Taiwan¡¦s opposition parties under the One-China and anti-Taiwan-independence principle and openly influence the politics of Taiwan. In a way the Taiwanese nationalistic democratic government is being surrounded by Chinese nationalists from within and Chinese imperialists from without. As the curtain of the 7th constitutional amendment fell and the second phase of constitutional form started, the counterpart of Chinese nationalism ¡V Taiwanese nationalism¡¦s constitution formulation and independence movement ¡V took shape. The One-China issue has become the igniting point of the democratic civil war in Taiwan, which seriously challenges Hsieh Chang-ting¡¦s ¡§reconciliation and coexistence¡¨ idea and policy.

Concerning Taiwan's national status and identification, Hsieh Chang-ting during his administrative address following his inauguration on February 25 indicated that reconciliation and coexistence between the ruling and the opposition parties must be based on trust, that the Republic of China has been ¡§Taiwan-ized,¡¨ that reconciliation and coexistence with the Mainland does not work against the effort to maintain Taiwan¡¦s sovereignty. Only when Taiwan¡¦s inner struggle is settled, he said, will all the parties be able demand in unison that China relinquish its military threat against Taiwan and allow both sides of Taiwan Strait to create a state for peaceful coexistence.

Before the Constitution is changed, Hsieh Chang-ting further indicated, the Executive Yuan must conform to the Constitution. Believing that the One-China framework is present in the Constitution, he advocated ¡§constitution-based One-China.¡¨ He said his ¡§constitution-based One-China¡¨ differs completely from the One-China theory or ¡§one-nation, two-systems¡¨ of PRC. Taiwan doesn¡¦t have to castrate itself for becoming a part of PRC. According to Hsieh Chang-ting, the joint declaration of Bian-Sung talk did not contradict DPP¡¦s ¡§Resolution on the Future of Taiwan.¡¨ Taiwan is a sovereign state now. According to the Constitution, its name is the Republic of China.

During the premier inauguration press conference on May 20, Hsieh Chang-ting responded to Sung Chu-yu¡¦s argument that ¡§Two-Side but One China¡¨ is ¡§constitution-based One-China.¡¨ He said, the term ¡§constitution-based One-China¡¨ did not meet the approval of DPP or President Chen, but his. Hsieh Chang-tin explained his attitude toward the use of ¡§constitution-based One-China¡¨ differed from DPP or President Chen¡¦s. But he didn¡¦t think he was in disagreement with DPP or President Chen concerning the content of ¡§constitution-based One-China.¡¨

What exactly is the content of "constitution-based One-China?" Let's try the following reasoning:

First, President Chen Shui-bian in the Bian-Sung talk agreement declared that the national status defined by the Constitution of the Republic of China shall be in accordance with the realistic and legal status quo of cross-strait situations, and that abiding by the Constitution shall be the highest principles for dealing with cross-strait relations. Concerning the de facto and legal status quo of current cross-strait relations, the ¡§Resolution on the Future of Taiwan¡¨ proposed by Hsieh Chang-tin during his term as DPP chairman and sanctioned by second session of the eighth DPP national conference defined that ¡§Taiwan is at present a sovereign state now, and according to the Constitution its name is the Republic of China.¡¨ The problem is the national status outlined by the ¡§Resolution on the Future of Taiwan¡¨ differs from that of the Constitution. The subject of the former is ¡§Taiwan¡¨ while the subject of the latter is ¡§the Republic of China.¡¨ Taiwan is a geographical term of political connotations. In essence it does not include ¡§China¡¨ or ¡§Mainland China.¡¨ So Taiwan¡¦s sovereignty does not concern ¡§China¡¨ or ¡§Mainland China.¡¨ Yet the ¡§Republic of China¡¨ can encompass both ¡§Taiwan¡¨ and ¡§China¡¨ at the same time because at one point the Republic of China was China. As a result of historical changes, however, the meaning of the ¡§Republic of China¡¨ shrank in scope. Sometimes it simply means Taiwan. Meanwhile, international politics and jurisprudence begin to see ¡§China¡¨ as PRC. In other words, as a matter of the national law, the sovereignty defined by the Constitution of the Republic of China covers both the Mainland and Taiwan. Yet according to the principle of popular sovereignty, the Constitution of the Republic of China is only in force in the area effectively governed by the Republic of China. The foreword of the amendment to the Constitution of the Republic of China acknowledges the fact that the nation has not been unified. Separating the emancipated area Taiwan from the Mainland, it defines the Mainland as an area under a separate legal system, insinuating the fact that PRC has rule over the Mainland and that the de facto sovereignty of the Republic of China or the power of its current Constitution is only limited to Taiwan. Without the authorization of the Republic of China in accordance with the constitutional procedures, this sovereignty may not be recovered of extended to cover the Mainland. As a result, the discrepancies between the Constitution of the Republic of China and the Resolution on the Future of Taiwan can be wiped out. In other words, in terms of realistic sovereignty the Republic of China is Taiwan. Neither the Republic of China nor Taiwan has realistically or legally completed the unification. The way for the Republic of China or Taiwan to unify realistically and legally is revision or formulation of the Constitution that so defines the territory of Taiwan, whose name is the Republic of China, as to include the islands of Taiwan, Penghu, Kinmen and Mazu. This way, the legal sovereignty of the Republic of China is limited to Taiwan, and the realistic sovereignty of Taiwan will be upgraded and become legal sovereignty.

¡@¡@The statement that the national status defined by the Constitution of the Republic of China ¡§shall be in accordance with the realistic and legal status quo of cross-strait situations¡¨ should be interpreted as ¡§The legal sovereignty of the Republic of China covers Mainland China while its realistic sovereignty is limited to the islands of Taiwan, Penghu, Kinmen and Mazu. According to the practice of popular sovereignty, the purview of the Constitution of the Republic of China following the amendments in Taiwan encompasses the islands of Taiwan, Penghu, Kinmen and Mazu.¡¨ Special attention must be given to the fact that this expression is similar to the statement of National Unification Commission¡¦s resolution, ¡§Concerning the Connotation of ¡§One-China,¡¨ in form, but different in essence. The resolution defines that ¡§the sovereignty of the Republic of China covers the entire China. But its current governance is limited to the islands of Taiwan, Penghu, Kinmen and Mazu.¡¨ The word ¡§governance¡¨ expresses the notion and reality of governing or dominance while ¡§sovereignty¡¨ represents something one level higher, referring to the popular sovereignty basis for establishing the entire constitutional order. This article is of the opinion that the concept of realistic sovereignty is greater than governance because the procedural amendment to the Constitution in 1991 has limited the scope of the Constitution to Taiwan. Through a declaration that ends the Period of General Mobilization for Suppression of Communist Rebellion, it recognizes PRC¡¦s legal governance of the Mainland. Toward the end of that year the Republic of China in Taiwan comprehensively reelected members of the second National Assembly, which amended the contents of the Constitution the following year. The new constitutional order of the Republic of China in Taiwan was completely created by people of Taiwan through exercise of popular sovereignty. People of the Mainland did not participate in the process through which the new constitutional order of the Republic of China in Taiwan was created. From the perspective of popular sovereignty principle and social contract theory, they are not subject to the new constitutional order of the Republic of China, which consists of the text of the Constitution of the Republic of China and its amendments. Neither are they entitled to the popular sovereignty of this new constitutional order. The ensuing five amendments continued to substantiate the legal ground of this realistic sovereignty. Even if the reasonable legal status of cross-strait relations is not a state-to-state one, it has to be a de facto one-China-based state-to-state relation. As a matter of fact Hsieh Chang-tin was one of the early-day advocates of the concept of realistic sovereignty. In its ¡§1007 Taiwan¡¦s Realistic Sovereignty Resolution¡¨ sanctioned by second session of the fourth national conference on October 7, 1990, DDP declared, ¡§The realistic sovereignty of the state does not cover Mainland China or Mongolia. Our future constitutional system, as well as interior and foreign policies, shall be based on the scope of the realistic territory.¡¨ The concept of realistic sovereignty was introduced here because of the recommendation of Hsieh Chang-tin. In this resolution DPP replaced the ¡§international sovereignty¡¨ of ¡§417 Sovereignty Resolution¡¨ (1988) and the ¡§political sovereignty¡¨ of the ¡§Draft of the Democracy Charter¡¨ (1990) with the concept of realistic sovereignty.

So in the new constitutional order of Taiwan after 1991 there exists an antinomy between legal sovereignty and realistic sovereignty, between China-orientation and Taiwan-orientation. Legally there is a virtual One-China framework. Yet the entire constitutional order reflects the fact that Taiwan (in reality) is independent of the legal sovereignty of China advocated by PRC. Premier Hsieh is against PRC¡¦s unilateral One-China theory in that PRC did not completely inherit the Republic of China and that the people of Taiwan did not participate in the creation of PRC¡¦s constitutional order. The Republic of China and Taiwan, therefore, do not belong to PRC and the China it represents. We, however, have to acknowledge that there exists in the constitutional order of Taiwan a one-China framework according to the legal sovereignty of the Republic of China. Whether we like it or not, before we are able to break through domestic/international constraints to change it, it will always be there. We are under the obligation to abide by the Constitution we attempt to change.

The inclusion of the referendum in the Constitution through the 7th amendment seems to give pro-independence parties some hope; namely, it is possible to unify Taiwan¡¦s legal sovereignty and realistic sovereignty through a referendum. Yet as we have mentioned before, the difficulty of passing a constitutional amendment through the referendum is beyond fathom, let along a sovereignty issue that concerns national identity. It is impossible to complete the construction of a Taiwanese-Nationalist state through constitutional revolution because the threshold of the constitutional amendment is too high. And there is the daunting presence of PRC that intimidates Chinese-Nationalist parties. Under the joint attack of the opposition powers and foreign governments, the chance for any attempt to successfully enact a new constitution and establish a new state is dim. This out-of-the-system approach may disturb Taiwan¡¦s unity. Without the backing of social consensus it will bring disasters on Taiwan.

Before the social consensus is formed under the banner of independence, one of the government¡¦s responsibilities is to find the greatest denominator of the general consensus. Now this basis has been identified through Bian-Sung Talk and the 7th constitutional amendment. It is the Constitution of the Republic of China, in which exists an antinomy between legal sovereignty and realistic sovereignty, between China-orientation and Taiwan-orientation. It takes genuine respect for and appreciation of the antinomy in the Constitution concerning the national status for the Constitution to become the consensus document that wipes out social disagreements and unites Taiwan.

As long as we grasp the antinomy of the Constitution of the Republic of China and understand the context and reasoning of its wording, we will be able to tolerate different interpretations of the same constitution. This way the so-called ¡§constitution-based one-China¡¨ or ¡§One China, Separate Interpretations¡¨ or ¡§two sides of Taiwan Strait expressing the concept of one-China individually¡¨ can all become acceptable dialectics, instead of disastrous heresies. Premier Hsieh¡¦s approval of the term ¡§constitution-based one-China¡¨ indicates based on the standpoint of Taiwan the definition of One-China must be rooted in the Constitution of the Republic of China, which in its own right defines a One-China framework that is different from PRC¡¦s. The cross-strait feud over sovereignty is no news to all. Whether in the future the parties are willing to establish a new China that is beyond the current framework, or form a third-party China (the entire China) after the pattern of EU that is mutually acceptable, or complete unification of legal sovereignty and realistic sovereignty severally and each founds a new country, is up to the choices of the people on each side of Taiwan Strait. This is the 6th agreement of Bian-Sung talk: ¡§Any attempt to change the status quo of Taiwan Strait is subject to the approval of the 23,000,000 residents of Taiwan. Based on the good faith of both sides of Taiwan Strait, no possible development of cross-strait relations is precluded.¡¨

It takes understanding and tolerance of the pros and cons of Taiwan independence for reconciliation, coexistence and dialogues to be possible between the two sides of Taiwan Strait, between pro-unification and pro-dependence parties in Taiwan. When we realize that national status issues have hindered national development and given rise to domestic/international disputes, that PRC factors have begun to play active roles in domestic disputes, it is the government¡¦s responsibility to identify a common ground for China and Taiwan, turn disagreements into agreements and turn hindrances into momentums in order to alleviate social divisions and stall the attempt to deprive Taiwan of its sovereignty. It is this article¡¦s position that acknowledgement of the One-China framework in our Constitution does not at all work against our pursuit of Taiwan¡¦s legal sovereignty. Instead of letting the opposition parties interpret the issues as they wish, the government should face up to the challenges. Premier Hsieh¡¦s policy concept reveals his sincerity and courage to open the door for ¡§negotiations and dialogues.¡¨ It deserves the approval, encouragement and support of the people in Taiwan.

It is true that during his address in Taiwan Solidarity Union¡¦s fourth anniversary celebration on August 16, President Chen expressed his objection to the concept of ¡§constitution-based one-China¡¨ or ¡§Two-Side but One China.¡¨ But his statement was not without a premise. He was actually against a ¡§constitution-based one-China¡¨ concept that ¡§severs the popular sovereignty, deprives Taiwanese people¡¦s freedom of choice and allows ¡¥unification¡¦ as the prerequisite or the only option.¡¨ We need to be aware that this is completely different from Premier Hsieh¡¦s ¡§constitution-based one-China,¡¨ which serves only as a legal discourse of the Constitution.

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