A Happy 60th Birthday to the Republic of China Constitution

A Happy 60th Birthday to the Republic of China Constitution
China Times editorial (Taipei, Taiwan, ROC)
A Translation
December 25, 2007

The Republic of China Constitution was promulgated on January 1, 1947, and enacted on December 25 of the same year. Today is its 60th anniversary. In Chinese tradition 60 years marks the completion of a cosmic cycle. By coincidence, this year is also the 20th anniversary of the rescinding of martial law. The ruling DPP is aggressively trumpeting the rescinding of martial law, but pointedly ignoring the 60th anniversary of the enacting of the constitution. Apparently the constitution will have to celebrate its 60th birthday in solitude and silence.

This republican constitution underwent a difficult birth and considerable growing pains. Even before it was born, the Chinese Communist Party withdrew from the constitutional convention. For over 60 years, the CCP has adopted the attitude that the ROC Constitution has no legal authority. Even after it was born, it remained in swaddling clothes. Kuomintang President Chiang Kai-Shek, by means of temporary provisions and the implementation martial law, virtually nullified the constitution and the democratic process. As a result, during its first 40 years, constitutional rule was severely constrained. The lifting of martial law was in part the result of Democratic Progressive Party members joining "party outsiders" in demanding the restoration of the constitution. With the rescinding of martial law, the restoration of the constitution and even the peaceful transfer of power became a reality, affirming the feasibility of a constitutional republic. [Translator's note: the editorial uses the term "democracy" but constitutionally speaking this is incorrect. The Republic of China, as the name clearly denotes, is a republic, NOT a democracy. Democracies are unstable systems based on the subjective rule of the majority. Republics are relatively more stable systems based on the objective rule of law.] The ruling DPP regime however, is hostile to to this constitution. President Chen advocates the authoring of a new constitution, by hook or by crook. He is in essence repudiating the very constitution by which he was elected and swore a solemn oath to defend. This behavior is known as "dismantling the bridge after you've crossed it" or "love 'em and leave 'em." On the 60th anniversary of the enacting of the constitution, a ruling regime that is obligated to uphold and defend the constitution, is deafening us with its silence. The ruling DPP is the very picture of a political authority unwilling to abide by constitutional constraints.

Since the rescinding of martial law twenty years ago, the constitution has regained some of its former lustre. This is the main reason the Republic of China can boast that it is a constitutional republic. The constitution has been amended seven times. The content of these amendments has been highly controversial, and has been both praised and panned. The constitution was successfully amended to allow it to apply to a smaller territorial jurisdiction. Since then it has provided a rule of law foundation for winning candidates and parties, granting them the right to govern. It has provided an umbilical cord linking the present to the past, while leaving room for new developments in the future. It allows people of different political affiliations and even national identities to take what they want from the constitution and coexist side by side. The constitution has frequently been criticized as defective, but it is the product of the democratic process. It embodies a wide range of compromises between hostile and opposed political parties. Most importantly, its amendments reflect 60 years of democratic evolution and fulfill a dual role. They provide continuity with the past even as they break with the past. This is why a 60 year old constitution remains in good health even today.

The Republic of China Constitution has been abused by the Chinese Communist Party, the Kuomintang, and the Democratic Progressive Party. That it is now able to quietly enjoy its 60th birthday, must be considered a miracle. The constitution may appear fragile, but is in fact quite durable. The path of constitutional rule remains rocky. The future is difficult to predict. But the truth is not complicated. A constitution's raison d'etre is to limit political authority. The face of authority changes constantly. But its essential character remains the same. No one in power likes being constrained by a constitution. Everyone in power seeks the expansion of authority and its concentration in their hands. Taiwan lacks grounding in constitutionalism. It lacks acculturation in the rule of law. Its politicians lack the necessary commitment to constitutional government. In practice, the separation of the powers often degenerates into partisan strife. Blue and Green political loyalties trump concern for constitutionalism and a sense of right and wrong. Will the future be one in which power struggles destroy the constitution? Or will the constitution be able to limit the abuse of political authority? This is the test facing the Republic of China.

The real enemy of constitutional law is political power and influence. Every citizen has a responsibility to help the constitution limit political power and influence. For example, constitutional interpretations require enhanced vigilance regarding key constitutional checkpoints. One must never permit deviation from the constitution merely because the person in authority is charismatic, or his political style is dramatic. The separation of powers must be maintained. Checks and balances must not be relinquished. One's party must not be valued above the nation. One must not change one's stand on constitutional limits merely because one has changed positions and become the ruling party. When Chang Chun-hsiung was an opposition legislator, he challenged the KMT's appointing of the vice president to the position of premier, expanding the power of the executive. Now that Chang holds the post of premier, how can he knowingly violate his own principles? How can he allow himself to be the president's instrument for the expansion of executive power? Intellectuals and academics must demand that political leaders strictly observe constitutional limits. Political office holders must accept the fact that constitutional standards cannot be custom tailored for certain individuals or political parties. Ambitious politicians cannot be permitted to seize power and trample over the constitution by means of constitutional exceptions.

A once endangered constitution has managed to survive many winters and achieve something akin to permanency. This vital and tenacious constitution is the foundation of our republic. Those who celebrate the Republic of China's constitutional government, should celebrate Asia's oldest constitution. No matter how tyrannical a political authority might be, constitutional government is like a cool breeze or bright moonlight illuminating a river. A Happy 60th Birthday to the Republic of China Constitution

中時電子報
中國時報 　2007.12.25
中華民國憲法，六十歲生日快樂
中時社論

　中華民國憲法於民國三十六年一月一日公布，同年十二月廿五日施行；今天，是行憲六十周年，中華民國憲法的花甲之慶。巧合的是，今年也是解嚴廿周年，相對於紀念解嚴時的積極，政府似乎嗅不出任何慶祝行憲六十周年的氣氛。憲法，只能是一位默默享受六十歲生日的壽星。

　做為一部民主憲法，它的誕生與成長均不順利。在它出生之前，中國共產黨即宣告退出孕育制憲的政治協商會議，之後六十餘年來，從來都對這部憲法採取否定其效力的態度。憲法誕生之後，尚在襁褓中即遭遇國民黨蔣介石總統以憲法臨時條款及實施戒嚴的方式，幾乎架空了民主憲政的運作，所以行憲六十年的前四十年間，憲政的成長受到了極大的壓抑。解嚴，其實很大一部分來自於當時以黨外人士出現的民進黨人長期要求「回歸憲法」的努力。解嚴之後，「回歸憲法」得到實現，甚至完成了政黨輪替的和平政權移轉，驗證了憲法的民主可行性。但是民進黨政府卻又對這部憲法抱持敵意，陳總統以各種方式提倡制憲，實質上否定他賴以當選且宣誓遵守的憲法，謂之為過河拆橋、始亂終棄也不為過，行憲六十周年，負有行憲責任的政府悄然無聲，正是權力不肯心甘情願接受憲法約束的寫照。

　平心而論，解嚴廿年來，憲法開始恢復生機，就是台灣今日可以自詡為民主國家的主要原因之一。憲法增修條文歷經七次修訂，其內容雖然屢見爭議而有仁智互見的評價，但是原本在台灣運作有所侷限的憲法，因為增修條文而克服了領土管轄區域與國民範圍調整所引起的困難。它為每次在選舉中獲勝而執政的政府，提供了民主正當性的法治基礎，不但建立了連結過去的臍帶，更為未來國家發展的各種走向與可能，預留了彈性想像空間。讓生活在台灣，懷有不同政治信念甚至國家認同觀的人們，均有各取所需且共同相處的可能。這部經常遭受批評而瑕疵似乎很多的憲法，卻是民主程序下的產物，也容納了敵對政黨的各種妥協，最重要的，憲法增修條文為六十年來的台灣民主發展歷程，同時負載了斷裂時代與延續往昔的雙重功能。這正是六十年的憲法，今日仍然健在的道理。

　中華民國憲法，先後歷經了共產黨、國民黨與民進黨的糟蹋，現在還能靜度六十壽辰，真是台灣的另一項奇蹟。憲法的生命看似脆弱，其實旺盛，然則憲政道路前景卻依舊坎坷，甚至有些前程未卜，這其間道理並不複雜，憲法存在的價值，在於拘束政治權力，可是權力的外貌變幻不羈，掌權者的面容也不一樣，卻有著相同的本質，他們都不樂意受憲法的拘束，也總是追求權力的擴張與集中。台灣沒有牢固的憲政傳統，也缺乏豐富的憲法文化，政治權力人物的憲政素養不足，權力分立的制衡實踐，往往變質為政黨之間的惡質傾軋。時至今日，藍綠的標籤，勝過了憲法意識與憲政是非。未來會是權力的競逐淹沒憲法，還是憲法足以規範權力的步伐，正就是台灣民主的考驗。

　憲法的真正敵人是政治權勢，協助憲法馴服政治權勢，各方都有責任，例如釋憲者必須隨時提高警覺，嚴守憲法關隘，不因權力人物身分特殊、當權者姿態張狂，即予縱容曲從；權力分立機關不能輕易放棄制衡責任，也不該黨同伐異，換了權力位置就變更憲政立場。像是張俊雄在野擔任立委時，曾在憲法法庭上質疑總統不該差遣副總統擔任行政院長，覬覦行政權力；有朝一日執政擔任行政院院長，就不能明知故犯，成為暗助總統掌控行政權力的推手。還有許許多多的知識分子、學界領袖，也應該時時刻刻要求政治領袖嚴守分際，虛心接受憲法的規範不能因人而異，因黨而異，成為權力政客攫取權力破壞憲法，踐踏憲政的幫凶。

　曾經危如纍卵的憲法，只要一息尚存也可經冬回春，彌足恆久。生命力強韌的憲法，就是民主政治的福音；慶幸台灣能夠享受民主的有識之士，應該慶幸台灣有著一部在亞洲國家之中堪稱長壽的民主憲法，任由政治權力強橫，憲政猶能如清風拂岡，明月照江，不絕如縷。

　中華民國憲法，六十歲生日快樂！