Tuesday, December 25, 2007

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

中國時報  2007.12.25








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