[ I’m a week behind on this post. A lot of other things have gotten in the way, and I haven’t been able to get it done. However, I feel strongly that this is an important topic I needed to address at some point.]
During the presidential debate on December 30th, most of the discussion was, in one way or another, about how to deal with China. All three candidates made statements that I did not expect based on their previous rhetoric. However, since Lai is the front-runner and a lot of the international discussion has been about him, I’m going to focus on two exchanges that shed some light on where he stands.
Most of the international discussion about Lai starts with his statement in 2017 when he was the premier that he is a pragmatic Taiwan independence worker. As a presidential candidate, he has not renounced this statement. Rather, he has tried to put it into a context that is more palatable to the general population and the international community. The most important part of this strategy is declaring that he will firmly follow the path established by president Tsai.
During the debate, Ko Wen-je challenged him explicitly on his statement being a pragmatic Taiwan independence worker.
(Note: translations are all mine. These are not word for word; I left out the non-essential parts.)
You say you’re a pragmatic Taiwan independence worker. The United States has said clearly that they do not support Taiwan independence. Heavyweight American scholars have also called on you to rescind the Taiwan independence plank in the DPP platform. As the DPP party chair, how are you going to handle this?
In the policy forum the other day, you said ECFA is not the right path for Taiwan to follow. Why didn’t you abolish ECFA when you where the premier? Now you’re the vice president; why don’t you announce we will stop implementing it immediately?
It’s only during elections that you don’t dare to talk about Taiwan independence. An honorable man would be consistent about this. You are a fake supporter of Taiwan independence and a real fraudster to get votes.
(Aside: it’s a little strange that Ko, not Hou, is the one who asked this question. Ko has spent so much time telling us he is above “ideology,” and here he is plunging right into the debate.)
(Aside2: Congratulations to Bonnie, Jessica, and Tom for breaking into domestic political arguments. In other places, I’ve even seen them equating your argument with the official American position. No one here takes anything I say in Frozen Garlic so seriously.)
Lai’s response included a definition of Taiwan independence and clarified what he meant by being a pragmatic worker for that.
The so-called American or American scholars’ opposition to Taiwan independence is a full discourse. They oppose China using military force to change the status quo in the Taiwan straits. At the same time, they don’t support Taiwan formally declaring independence. The goal is to preserve the status quo in the Taiwan straits. You are purposely misrepresenting and twisting this position and using it for your own propaganda.
In my opening statement, I said I will lead the country to maintain the status quo. Protect the country, stabilize cross straits, and promote peace in the Indo-Pacific region. That is my mission.
When president Tsai took office, she promised not to go back to the old path of conflict. That is, she would honor all the agreements made with China by presidents Lee. Chen, and Ma. There is no question about whether Taiwan will continue to honor ECFA; the only question is whether China will use ECFA for economic coercion or to try to influence Taiwan’s elections.
What is the definition of Taiwan independence? Taiwan sovereignty belongs to 23 million people. It does not belong to the PRC. The ROC and the PRC are not subordinate to each other. This is the definition of Taiwan independence. I am a pragmatic worker. My goal, as I said in my opening statement, protect Taiwan, construct the country, develop the economy, and take care of the people. These are the tasks for a pragmatic worker. That is my sincere answer to you.
This is a solid answer. The DPP’s “constitutional order” froze the Taiwan independence plank way back in 1999 with the Resolution on Taiwan’s Future, which asserted that Taiwan is already sovereign and independent and that any changes to this status quo must be ratified by a popular referendum of the 23 million citizens. That is, the DPP’s official stance is that there is no need for an independence referendum or declaration. Lai could have said he is a worker for maintaining the status quo, but that doesn’t sound quite as sexy.
So if the task of a Taiwan independence worker is not to try to get referendum or a formal declaration, what is it? Lai gives a very bland answer: protect Taiwan, construct the country, develop the economy, and take care of the people. The only one of these that could be controversial is “construct the country” (建設國家 jianshe guojia), which probably means from building more railroads and water reservoirs but could also be interpreted as establishing a new culture. If it’s the former, these are all pretty mundane tasks.
In short, Lai is telling us not to freak out about the phrase “pragmatic Taiwan independence worker.” It just means he will try to maintain the status quo and try to do all the normal things that politicians do to create a better society.
I doubt he changed anyone’s mind, but he presented the argument in a competent fashion. Maybe some people looking for reassurance will be reassured.
However, this is not the response that caused controversy. That came earlier in the debate, in response to a question from the representative of the China Times newspaper.
Remember, the China Times is a rabidly pro-unification outlet. It’s not so much deep blue as purple bleeding into red. So Lai should have expected that the question was going to be aimed at trying to entice him into saying something controversial.
Here is the question:
I have three questions.
First, do you support the ROC constitution? Please answer yes or no.
Second, the ROC constitution defines ROC as the existing territory of China, and the amendments indicate that both Taiwan and mainland China are part of the ROC. Do you agree that mainland China is part of the ROC territory?
Third, we can turn the question around. Some people say, that under the ROC’s one country two systems, the country is divided into mainland China and Taiwan-Penghu-Kinmen-Matsu. Do you agree with this? (Note: I think she meant to say the PRC’s one country two systems.)
Please tell us your true feelings about these questions, and talk about your vision for cross straits relations.
If he wasn’t already on guard, her invitation to express his “true feelings” should have been an extra reminder that this was not a friendly question.
There is an easy answer to this question: “Like president Tsai, I support the ROC constitutional order. The constitutional order includes the 1946 constitution, all the amendments to the constitution, the various laws that implement the constitution, all the judicial decisions that interpret the constitution, and the actual behavior of bureaucrats and other people. Together, these constitute the legal framework that governs our country, and I wholeheartedly support this constitutional order.” Then he could have pivoted and spent the rest of his time attacking one of the other candidates for something they said earlier. Lai did not go down this road. He needed to give his own answer with his own twist and a little bit of elaboration.
The constitution is the country’s fundamental law. It is also the guarantor of the people’s human rights. When we talk about the constitution, the first topic should be guaranteeing human rights. To guarantee human rights, you must prioritize a liberal democratic constitutional system.
If you look at the constitution established in 1946, you will be disappointed. During Lee Teng-hui’s term in office, the constitution was amended six times. What we are now operating under is the system established by these amendments, which is a system centered on developments in Taiwan.
If the constitution or other laws can unify the people, of course we use them. But if you want to use them to resolve cross straits issues, I’m afraid that is a different level.
China, the People’s Republic of China, has never accepted the existence of the ROC. China has three clear principles that it has stated internationally. First, there is only one China. Second, both sides of the Taiwan Strait belong to China. Third, the People’s Republic of China is the only legitimate government of China
If we here in this country take the ROC as our protective sacred mountain, will that bring peace or disaster? We have to think about it.
Taiwan has already moved from an authoritarian and dictatorial era into the light of open democracy. We must cherish this; we cannot go backwards. We must move bravely forward.
When I am the president, I will forge a consensus in Tawan to create a path to move forward together and both protect the country and develop the economy for the benefit of all the people.
The other candidates and the media seized on a quick sound bite: Lai’s statement that the ROC would bring disaster. How could he say such a thing? This was clearly evidence that Lai hates the ROC!
His explanation after the debate hardly helped. Lai clarified that, in his haste, he misspoke. What he meant to say was the “ROC constitution,” but he left out the word “constitution.” That doesn’t seem any better. In the original statement, he seems to be saying that, just by existing, the ROC is inviting disaster. In the revised statement, he seems to be saying that, by being a constitutional democracy, Taiwan is inviting disaster. Talk about blaming the victim!
I think I understand what Lai was trying to say, but he managed to be both not clear enough and too clear.
Article four of the 1946 constitution says, “The territory of the Republic of China according to its existing national boundaries shall not be altered except by resolution of the National Assembly.” This is the basis for the argument that the ROC constitution covers both Taiwan and mainland China. However, the constitution has been amended seven times since 1991. As part of the final round of amendments in 2005, they combined all the changes into a cleaned-up document, which is called “additional articles.” While the 1946 constitution officially still remains in effect; in practice, most of it has been superseded by the 12 additional articles. The additional articles make a distinction between the “free area of the ROC” and “mainland China.” All political power is derived from democratic mandates from citizens in the free areas. That is, the legitimacy of the current ROC regime comes exclusively from Taiwan (and the other islands governed by the current ROC government). And since this distinction between the free area of the ROC and mainland China was ratified by the National Assembly, the national boundaries have arguably already been altered to only include Taiwan. From there, it follows quite naturally that Taiwan, which is formally named the Republic of China, is sovereign and independent, and that the ROC and PRC are not subordinate to each other.
I think Lai was trying to argue that Article 4 – which he thinks is obsolete – is effectively One China. It would tie Taiwan back to China and compromise the basis of Taiwan’s sovereignty and independence. That is, the 1946 constitution, which is the version that the China Times seemed to be asking him to pledge loyalty to, would turn Taiwan into a domestic PRC question like Hong Kong. This would both invite the PRC to “resolve” this purely domestic problem, and simultaneously deprive any international actors a valid rationale for helping Taiwan defend itself. This would be a disaster for Taiwan. At least that’s what I think Lai was trying to say.
Of course, this is not the only way to understand the current ROC constitution. A more literal reading of the additional articles suggests that, if there are free areas of the ROC there must also be unfree areas. Additional article 11 makes this clear, saying “Rights and obligations between the people of the Chinese mainland area and those of the free area, and the disposition of other related affairs may be specified by law.” Moreover, the National Assembly never explicitly changed the national borders. Arguably, the current ROC constitutional order does indeed imply a One China principle
This ambiguity is why Tsai’s ROC constitutional order discourse has been so powerful. She can slide back and forth between different interpretations as necessary. She can claim that there is a thing called ROC, Taiwan, in which the ROC and Taiwan are (roughly) equivalent, that ROC Taiwan is sovereign and independent, and that the ROC and PRC are not subordinate to each other. At the same time, she can claim to be upholding the status quo, since there has never been a formal declaration changing the national boundaries or rescinding 1946 constitution. She hasn’t accepted One China, but, by championing the ROC constitutional order, she has deliberately left a loose thread hanging conspicuously out there.
To my knowledge, Tsai has never given a speech thoroughly clarifying exactly what the constitutional order means, implies, or obliges the president to do. I’ll never forget her presentation at CSIS in Washington DC in 2015 when she explained that she would respect the constitutional order in order to maintain the status quo. During the Q&A section, several people asked her to clarify what she meant and whether she would continue to honor the 92 consensus. Each time she calmly replied that the answers to those questions were very clear in her prepared speech (note: they weren’t), and the questioner should reread the transcript more carefully. Then she moved on to the next question, resisting the temptation to say anything further. It was a very disciplined performance.
The presence of loose threads like this one an important reason she’s been so successful in building stronger relationships with other democracies. She has demonstrated the discipline not to cut that thread, which reassures other countries she won’t take rash action on other matters as well. She’s not going to plunge the world into crisis with some ill-advised off-the-cuff remark.
Here, Lai revealed that he doesn’t have the same discipline as Tsai. He couldn’t resist the temptation to explain why respecting the constitution is compatible with Taiwan independence. These are the types of clarifications that legislators, pundits, and scholars can make, but presidents, cabinet ministers, and diplomas probably should leave unsaid.
I was also taken aback by a couple other points Lai made about constitutional democracy. The primary purpose of a constitution is to define how the government will be formed and operate. Human rights are a by-product of a healthy democratic constitution, not the starting point. He also implied that, if they don’t unify the people, it’s acceptable to ignore the constitution and laws.
In short, I thought this is answer was awful. I still think that Lai is sincere when he says he wants to follow the path laid out by president Tsai, but I’m significantly less confident that he has the capacity to actually do that.
Frozen Garlic 
January 7, 2024 at 3:09 pm |
I’m curious what you think of how Taiwan’s courts view the situation.
I found a court decision that seems relevant: in 1999 the Constitutional Court issued a ruling[1] that interprets the Act Governing Relations between People of the Taiwan Area and Mainland Area with respect to whether it is constitutional to restrict the movement of Mainland Area residents into Taiwan. They wrote that this law is “a special law governing the rights and obligations between the peoples of the Taiwan area and the Mainland area prior to the reunification of the nation”.
I’m no legal scholar but to me it looks clear that Taiwan’s actual legal system upholds the “one China” interpretation of the constitution: the mainland area (aka China) and Taiwan constitute one nation that is waiting to be reunified, and that the issue is indeed a domestic dispute between mom and dad over who is head of the household.
[1] https://cons.judicial.gov.tw/en/docdata.aspx?fid=100&id=310678
January 7, 2024 at 5:41 pm |
Apologies, you did not ask ME and I’m no scholar of Taiwanese constitutional law. But I think that JY interpretation 328 – which you may or may not already know – can shed some light on this question.
In that ruling from 1993, the Constitutional Court said that the determination of the national boundary is a purely political matter in which the courts have no say.
Think effectively this means: “It’s not prescribed by the constitution; government and parliament can do what they deem fit.”
https://cons.judicial.gov.tw/en/docdata.aspx?fid=100&id=310509
Applied analogously on the “reunification” question, this would (or could) mean that the constitution allows for it, but leaves this decision to government, parliament and electorate.
My personal take on all these “it’s in the constitution”-arguments is that they are political rhetoric leveraging authority and shifting responsibility.
“It’s not me personal who is claiming mainland China. It’s in our sacred constitution and we have to follow.”
January 7, 2024 at 6:22 pm
That’s a really good point to raise, thanks for posting the 1993 decision.
What I would note is that the 1999 decision referring to the reunification of the nation is the more recent one, and the court certainly has the right to supersede its past decisions.
Another point to consider is that the Act Governing Relations with the Mainland Area is itself an act of state, and that act specifically defines the “Mainland Area” as the territory of the ROC. While it doesn’t explicitly define what comprises the mainland area, a simple observation of how this law has been enforced by the state for the past 32 years makes it clear that “Mainland Area” refers to the territory and people of the PRC and that interpreting it otherwise requires extraordinary mental gymnastics.
Finally, despite the fact that the court in 1993 left interpretation of borders to the state, as far as I’m aware the state has never formally clarified its interpretation of Article 4, nor has the legislature ever revised the nation’s territory using the special procedure. The obvious conclusion, supported by both the cross-strait Act and the constitutional court decision of 1999, is that until the legislature clarifies otherwise, the territory of the state is considered to be the historical borders of 1946.
Of course, I would then argue that the 1946 borders cannot legally include Taiwan because sovereignty was only relinquished from Japan in 1952… oh boy, what a mess.
January 7, 2024 at 8:00 pm
“oh boy, what a mess.”
Indeed! Am trying to make sense out of these purported “constitutional territory” of the ROC/Taiwan since the last presidential election and have come to the conclusion, that such attempts are “fundamentally flawed”. Therefore the ‘political rhetoric’ view.
1) No constitution in the world contains actual, workable definitions of the national territory. Would theoretically be possible, but require an ridiculous amount of paper.
2) Some constitutions, mainly of federal states, contain references to certain territories. But there effectively only enumerations of federal states or other types of subdivisions that exist or have to exist. None of the one’s I know of are anything close to defining borders.
3) The ROC’s provisional constitution was similar. It stipulated that the national territory “consists of 22 provinces, Inner and Outer Mongolia, Tibet and Chinghai”. But it does not define where the borders are.
4) Actual workable definitions are only found in international agreements between different countries. These can be actual, written agreements or simply the exercise of control without challenge by the neighboring countries.
This last point is where I see Article 4 coming in. It was a procedural norm providing a check on the governments ability to give up territory that the ROC actually and/or under international treaties “owned”. Not a norm that provided any baseline to “freeze” a certain international status unilaterally. Meaning, if other other countries break their treaties and/or effective control is lost, this may not have been under the coverage of Article 4.
The Act Governing Relations with the Mainland Area may or may not constitute a claim to the mainland. But it is definitively not part of the constitution; only statutory law made in line with the constitution.
So, that’s why I – currently – don’t see the basis for an argument that there is anything like a “constitutionally mandated territory” of the ROC. A clear, explicit ruling by the CC would be nice…
January 8, 2024 at 2:12 pm
I see where you’re coming from, but personally I’m not convinced. I’m fully a supporter of Taiwan independence, but I think Ko is right, and I don’t think that’s just political posturing.
We can look at how other countries write their constitutions, but the fact is that Taiwan’s constitution does contain a general provision describing the territory of the state… so for better or worse the ROC constitution itself has made the question a constitutional matter. The constitution gives the legislature the right to alter the borders, and so we must consider where they have legislated on the matter: the cross-straight relations act.
You’re right that the constitution doesn’t and shouldn’t contain precise territorial claims. It would be totally unworkable. But the specifics don’t alter the bigger picture. The _general_ territorial claim is clear and unambiguous: there is no question that the borders from the founding of the state until the writing of the present constitution included “mainland China”. It was literally the constitution of China.
The subsequent amendments, legislation, and judicial review, all opportunities where this interpretation could be altered, have never deviated from this view: they all support the one-China interpretation.
The constitutional amendments starting to be introduced in 1991 then reference both a free area and a mainland area of the nation.
The cross-straight relations act in 1992 explicitly defines the mainland area as being within the ROC’s territory.
The courts held in 1993 that the right to interpret and modify the borders is a political act of state when they declined to interpret the constitution, which reinforces the idea that the cross-straight relations act contains a territorial claim.
The court finally wrote in 1999 that the Mainland and Taiwan areas and their people are all part of one nation waiting to be reunified.
Finally if there is any doubt about how the term “mainland area” should be interpreted, one only needs to look at how the government has implemented it in reality over the past three decades. Who do the immigration rules for “mainland residents” apply to? It is unambiguously the people and territory of “mainland” China. If China really wasn’t considered a part of the ROC’s territory, then PRC citizens would apply for foreigner visas and ARCs and APRCs. But they aren’t. They are treated as nationals without household registration with special rules because they are from the “mainland area of the Republic of China”.
I don’t think the DDP’s view is a viable long term option… it’s a clever short-term political maneuvering that relies on extreme mental gymnastics. But in the end, they are describing one reality, while the constitution, laws, courts, and the lived experience of Hong Kong, Macau, and Chinese people who deal with the mainland affairs council all see another reality.
Taiwan needs real legal clarity and reform.
January 8, 2024 at 9:58 pm
Must admit: This topic bugs me more than it should. So, here another replies to your views. I word them mostly in absolutes for brevity and readability. In the end, these are views of a foreigner who has no actual stake in Taiwanese politics. So, again my apologies in case any of this sounds offensive; it’s only my intention to make some sense out of the matter, not to “educate” the Taiwanese people how their constitution works.
Any further counterargument and evidence of misunderstandings in my views is highly welcome! So that I can educate myself (I definitively would like to make sense out of this one day ^v^)
But here my rants continue:
OK, so the ROC constitution seems to contain a “general provision describing the territory of the state”.
But where would that be? Don’t think Article 4 does that, although that one is often quoted.
Maybe the “China” in the name of the state?
Still not convincing. This would be comparable to saying that the “United States of America” constitutionally claims Mexico, Canada, etc. because all there are part of America.
The Cross-Straights Act, too, is a mess when it comes to definition (see Article 2 No. 2.) In any case, the Cross-Straits Act is not part of the constitution. It is statutory law and therefore on a completely different level of norm.
Then, I do not see how it can be said that the CC did “decline[…] to interpret the constitution”. Courts, including the CC, must pass judgement on matters falling within their area of competency. And Articles 78 and 173 don’t provide the JY with an optional right it can chose to exercise or not it is a duty that must be performed.
By ruling that “delimitation of national territory [..] is [..] beyond the reach of judicial review” the CC interprets the constitution as not containing such delimitation. That may objectively be right or wrong; personally, I disagree with it, too. But is effective as interpretation of the constitution until the CC decides to change its view.
The 1999 ruling refers indirectly to the preamble to the Additional Articles, stating that “To meet the requisites of the nation prior to national unification, the following articles of the ROC Constitution are added or amended to the ROC Constitution […]”. Doubtlessly, the ROC constitution was intended to establish a state that governs the whole Chinese nation. But “nation” and “state” (“country”) are two different concepts. The ROC is a state, not a nation. And with the wording of the preamble, it is acknowledged that there are parts of the nation, that are part of a separate state, therefore the need for a reunification.
But even the relevance of the “Chinese nation” concept can be questioned. Sovereign of the ROC is not an abstract “Chinese nation”, but the ROC-citizens, thus the Taiwanese people. But for all that we know, most Taiwanese seem no longer consider themselves as even partially “Chinese”. To which degree can a democratic constitution override the will of the people in such a fundamental question?
Finally, you say that for doubt about how the term Mainland Area should be interpreted, one only needs to look at how the government has implemented it in reality over the past three years. But that exactly implies that such definition is provided by the government and not by the constitution.
If there were a constitutional definition of the national territory, then any deviation from it by the government (meaning LY, EY and subordinate agencies) would be null and void (Articles 171 and 172). They would also not be authoritative as an interpretation of the constitution. That can only be done by the JY.
So, I disagree that the DPP-view requires “mental gymnastics”. Conversely, I think it is the only reasonable view held by any larger Taiwanese party. At least under the current framework.
When Ko regurgitated this traditional KMT-claim that the mainland is constitutionally(!) territory of the ROC, I see this as unsupported and – in the current political context – irresponsible blunder. Actually, much worse than the statements made by Lai.
But in the end, I agree completely: Taiwan needs real legal clarity and reform.
January 7, 2024 at 10:55 pm |
`I vaguely recall that there has been some evolution in the regulatory or judicial attitude towards Mongolia. I doubt the issues of Tuva or Badakhshan could have come up, since they don’t issue passports…
January 9, 2024 at 3:59 am |
Mongolia is an interesting case because the ROC actually recognized it as an independent state when the constitution was ratified and promulgated. Apparently the National Assembly never “re-incorporated” it when that recognition was revoked in 1953, so arguably the ROC claim to Mongolia was invalid under Article 4. This was part of the reasoning the Chen administration cited for removing Mongolia from the “Mainland Area” and shifting ROC-Mongolian relations from the Mongolian and Tibetan Affairs Commission to the Ministry of Foreign Affairs, after which the MTAC only handled relations with ethnic Mongolians from the PRC.
January 13, 2024 at 11:26 pm |
[…] what happened to Lai on December 30th, as explained here by “Frozen Garlic”, wouldn’t have happened to Tsai […]
January 20, 2024 at 7:46 pm |
[…] 16 Nathan Batto, “Lai explains independence,” Frozen Garlic, January 6, 2024, https://frozengarlic.wordpress.com/2024/01/06/lai-explains-independence/. […]
February 9, 2024 at 3:09 am |
[…] 16 Nathan Batto, “Lai explains independence,” Frozen Garlic, January 6, 2024, https://frozengarlic.wordpress.com/2024/01/06/lai-explains-independence/. […]