Monday, September 15, 2008

The Green Camp: No Guts, No Glory

The Green Camp: No Guts, No Glory
United Daily News Guest Editorial
by Su Yung-chin, Professor of Law, National Chengchi University
A Translation
September 15, 2008

During an interview with Mexico's media, President Ma said that the relationship between Taiwan and the mainland is not a relationship between two Chinas, nor is it a state to state relationship between two nations. Instead, it is a special kind of relationship. The DPP Central Standing Committee issued a statement saying that Ma's statement had downgraded Taiwan to a region of China, and effectively conceded China's sovereignty over Taiwan. Professor Wu Chao-hsieh, who addressed the Central Standing Committee, said this was a giant step back for sovereignty, and retreated to a time before the period of mobilization against insurgency.

Needless to say, the DPP's criticisms about "downgrading" and "retreat" have obvious problems with their logic. More importantly, the head of state, who represents the nation, has failed to faithfully communicate the state of the nation vis a vis the Constitution.

According to the provisions of the constitutional amendment enacted in 1991, the nation is clearly "not yet reunified." The Republic of China is currently divided into a "free region" and a "mainland region." The provisions of the amendment specifies the rights and obligations of citizens of both regions, and the handling of various matters, in accordance with "special" provisions. This is the legal framework of what we refer to as "cross-strait relations." From the KMT government to the DPP government, and again to today's KMT government, this underlying legal framework has never changed. In 2005, DPP legislators proposed a constitutional amendment predicated upon this "one nation, two regions" premise. Otherwise, what was the significance of their reference to a "free region?" The constitutional amendment was even endorsed by the National Assembly. For all intents and purposes, it was comparable to a national referendum.

This applies not only to the constitution. Our entire Rule of Law system is clearly founded on this "one nation, two regions" premise. There are no exceptions. Not only did the DPP not repudiate this when it was in power, it abided by this formulation and stance completely. Even the DPP government never proposed changing the "Mainland Affairs Council" to a "China Affairs Department." The DPP's current party chairman and Professor Wu Chao-hsieh have both served as chairmen of the Mainland Affairs Council. When they were in charge of cross-strait affairs, they both made references to the amendment. At no time did they ever express any objections to the "one nation, two regions" provision in Article Two of the amendment.

Please note that this clause has always defined the "mainland region" as "Republic of China territory outside the Taiwan region." The distinction it makes between citizens in the Taiwan region and the mainland region is not their nationality, but their "household registration" or "place of residence." Anyone who doubts this can go to his local bookstore and purchase a copy of "The Complete Literature on the Six Laws," and pore over it. Both former MAC Chairman know them by heart.

All other laws relating to cross-strait relations also take infinite pains to affirm the premise of one nation. This did not undergo the slightest change under Democratic Progressive Party rule. For example, in 2006, Article 12, which attempts to bring cross-strait smuggling under control, makes a special point of referring to contraband as entering and exiting "regional borders" rather than "national borders." The article reads: "The smuggling of goods from the mainland region into the Taiwan region, or the smuggling of goods from the Taiwan region into the mainland region, will be defined by the provisions of this article." Article 3 (13) of the Immigration Act, ratified while the Democratic Progressive Party was in power, clearly distinguishes between foreigners and mainland compatriots. This list goes on forever.

The Grand Justices have the final word in interpreting the Constitution and the state of the nation. What do they have to say about all this? The Grand Justices, all of whom were nominated by President Lee Teng-hui, offered Constitutional Interpretation No. 329, clearly stipulating that "agreements reached between the Taiwan region and the mainland region" are not "international agreements." Judges nominated by President Chen Shui-bian crafted Constitutional Interpretation No. 619, even more clearly stipulating that "the two sides of the Taiwan Strait remain in a divided and confrontational state." These judges may hold very different political beliefs. But in the face of the Constitution, there is only one interpretation. Not one of them dissents. No president who swears allegiance to the constitution can possibly have a different view on the matter. .

The relationship between the two sides of the Taiwan Strait is not a "state to state" relationship between two nations. How can the DPP leap to the conclusion that "China," or what our Constitution refers to as the "mainland region," has sovereignty over Taiwan? Why wouldn't one conclude instead that the Republic of China still has sovereignty over the mainland, even though it may lack active jurisdiction? What "downgrading" is the DPP talking about? What "retreat" is the DPP referring to? If this constitutes a "downgrading of the nation's status" and a "retreat," why did the DPP government, which included one President and five Premiers, do nothing about it during the eight years it was in office?

Everyone says the economy has hit bottom. Fortunately a party with a predilection for sophistry has finally been ejected from office. Now is the time to repair the economy. Who knew this same party, now in the opposition, would continue to engage in disingenuous sophistry? We urge voters to ignore the DPP's latest logical non sequiteur. Otherwise there will be no end to it.

執政時不敢動 綠現在盧什麼?

馬 總統在接受墨西哥媒體專訪時說,台灣與大陸不是兩個中國關係,也不是國與國關係,而是一種特殊關係。民進黨中常會發表聲明,說這已經把台灣降格為中國的一 個地區,變相承認中國對台灣擁有主權;在中常會發表演講的吳釗燮教授,則說這是主權立場的大倒退,退到動員戡亂時期以前。


從 民國八十年修憲制定增修條文開始,國家的定位就很清楚的變成「在統一前」,中華民國分隔為「自由地區與大陸地區」,增修條文授權就兩地區間的人民權利義務 關係及其他事務的處理,得以法律為「特別」的規定。據此才有所謂兩岸關係條例,從國民黨政府到民進黨政府,再到今天的國民黨政府。這樣的定位從來沒有改變 過,民國九十四年民進黨立委提的修憲案也是建立在此一「一國兩區」的國家狀態上(否則無所謂「自由地區」可言),並得到類似全民公投(選舉任務型國代等同 於複決修憲案)的背書。

不僅憲法如此,整套法制都很清楚的建立在此「一國兩區」的國家狀態上,沒有任何例外。民進黨執政時期,非但未予否 認,而且完全依循此一定位制定政策和法案。我從沒聽說,民進黨政府要改變「大陸委員會」的機關名稱(比如變成「中國事務部」),現任黨主席和吳釗燮教授都 擔任過陸委會的主委。他們在主管兩岸事務期間,都提過兩岸條例的修正案,我也從沒聽過,他們對該法第二條的國家和地區定位有任何意見。


其 他法律凡是涉及兩岸關係的,也無不小心翼翼的維護此一國家狀態,在民進黨政府執政下,沒有半點改變。比如在民國九十五年才修正的懲治走私條例第十二條,為 了把兩岸間氾濫的走私行為納入管制,特別把定義上原僅指出入「國境」的貨流擴大到出入「區境」的情形:「自大陸地區私運物品進入臺灣地區,或自臺灣地區私 運物品前往大陸地區者,以私運物品進口、出口論,適用本條例規定處斷。」民進黨執政時期制定的入出國及移民法第三條第十三款,更是明確的區隔外國人與大陸 人民。諸如此類,不勝枚舉。

對於國家狀態有最後解釋權的司法院大法官,他們又怎麼說呢?全數由李登輝總統提名的大法官做成第三二九號解 釋,很明確的說「臺灣地區與大陸地區間訂定之協議」不是「國際書面協定」。全數由陳水扁總統提名的大法官做成第六一八號解釋,更清楚的描述「兩岸目前仍處 於分治與對立之狀態」。他們的政治信仰有很大的差別,但面對憲法,解釋只有一種,沒有任何不同意見。我不知道一個宣誓效忠憲法的總統,還能有什麼不同的看 法。

從兩岸不是國與國關係,如何跳到中國(應指被我們憲法稱為「大陸地區」者)對台灣擁有主權,而不是中華民國對大陸地區仍有主權,只是 「統治權所不及」?什麼是降格,什麼是倒退?如果這樣的國家定位是降格和倒退,為什麼民進黨政府執政八年,從總統到五位行政院長,什麼都不做?


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