Hsu Chung-li's Constitutional Interpretation: An Unacceptable “Gesture of Goodwill”

Hsu Chung-li's Constitutional Interpretation: 
An Unacceptable “Gesture of Goodwill” 
United Daily News Editorial (Taipei, Taiwan, ROC) 
A Translation 
October 25, 2016

Executive Summary: In her National Day address, President Tsai called on the Beijing authorities to face the fact that the ROC exists. But perhaps President Tsai should first ask her nominees for Supreme Court justices to face the fact that the Republic of China and the Constitution of the Republic of China exist. Someone who does not recognize the Constitution, is obviously unqualified to interpret the Constitution. Actually, this goes beyond that. This raises the question of where the justices intend to take the Republic of China as a nation.

Full Text Below:

In her National Day address, President Tsai called on the Beijing authorities to face the fact that the ROC exists. But perhaps President Tsai should first ask her nominees for Supreme Court justices to face the fact that the Republic of China and the Constitution of the Republic of China exist. Someone who does not recognize the Constitution, is obviously unqualified to interpret the Constitution. Actually, this goes beyond that. This raises the question of where the justices intend to take the Republic of China as a nation.

The justices of the Supreme Court issued their first Constitutional Interpretation on January 6, 1978. On October 21 of this year, they issued their seven hundred and fortieth Constitutional Interpretation. Over the past 60 years, the justices have issued numerous Constitutional Interpretations pertaining to the nation's political status and to cross-Strait relations.

During the early years, some interpretations resolved problems with a Constitution authored on the Mainland, that applied to China as a whole, by adopting it to Taiwan. They limited the application of the Constitution of the Republic of China to the Taiwan Region, and gave it a reasonable legal foundation. For example, some constitutional interpretations pertained to legislators and justices terms of office, to the number of representatives to the National People's Congress, to the terms of office for the first Central Government People's Representatives, and to the appointment of representatives and legislators. All were important measures that maintained the legal relationship between the Taiwan Region and Mainland Region of China, and provided a legal basis for the Republic of China as the government of the entire nation.

Constitutional amendments brought about constitutional changes. Pragmatic solutions to the problem of the two sides' political status were urgently required. Cross-Strait exchanges often led to conflicts over fundamental human rights and national security. But they also subjected more and more laws pertaining to cross-Strait relations to constitutional review. The justices clearly affirmed the "one country, two regions" clause in the amended Constitution. They acknowledged the distinction between sovereignty and jurisdiction, and the distinction between different jurisdictions. In other words, the Republic of China may have divided jurisdiction, but it has undivided sovereignty. On the matter of sovereignty, there is only one country. As for laws governing cross-Strait relations, past justices have given priority to fundamental human rights and freedoms.

Changes have taken place in Taiwan's political situation. The regional situation has evolved. Constitutional interpretations by Supreme Court justices have become an important pillar of national identity and cross-Strait relations. Constitutional interpretations rendered over time by past justices are the backbone of our constitutional framework. They are they key to Tsai's declaration that the two sides are committed to “maintaining the status quo". They are the true measure of Tsai Ing-wen's expressions of goodwill toward to the Mainland.

Tsai's nominees for Supreme Court justices however, have left people aghast. Hsu Chung-li for example, claims that cross-Strait relations are "special state-to-state relations", and that Republic of China sovereignty does not include territory occupied by the People's Republic of China. Hsu Chi-hsiung called the Constitution of the Republic of China “rotten”, and characterized the name “Republic of China” as a "national title abandoned by China". Huang Chao-yuan claimed that "The title of Republic of China is merely for domestic consumption, to satisfy nostalgic longings". Every one of these nominees has ridiculed and repudiated the Constitution of the Republic of China. So what are they? Are they defenders of the Constitution, or terrorists out to destroy the Constitution?

Individual justices may not be able to change long standing constitutional interpretations. But when the make up of the Supreme Court undergoes sudden change, a constitutional crisis is entirely conceivable. The Justice Yuan consists of 15 justices. A constitutional interpretation requires a two-thirds quorum. Two-thirds of the justices, i.e., ten of them must be present and seven must vote for passage. Given the seven current nominees' party affiliations, future interpretations of the Constitution will obviously tilt in one directions. By 2019, four more justices will retire. Tsai Ing-wen will nominate their replacements. In particular, when Hsu Chung-li established a new and negative "re-appointment" precedent. Huang Chao-shun made no secret of his willingness to be nominated as President of the Justice Yuan. He painted a picture of future justices resorting to political influence in order to remain in office.

Hsu Chung-li claims his "two-states theory" interpretation is "quite friendly" to the Mainland. But "friendliness" of this sort is intolerable to the other side. Chen Shui-bian attempted to author a new constitution but failed. Can his goal be realized through constitutional interpretations? The Constitution and the Regulations Governing the Relations between the People of the Taiwan Area and the People of the Mainland China Area are Tsai Ing-wen's basis for cross-Strait relations. Suppose Hsu Chung-li leads, and Hsu Chi-hsiung, Huang Chao-yuan and others follow? How will the justices interpret the Constitution, the law, and executive orders? Just how “friendly” will their constitutional interpretations of the two sides' political status be? How will they fulfill Tsai Ying-wen's pledge to demonstrate “goodwill” towards the Mainland? People are right to be worried.

許宗力釋憲，兩岸關係難以承受的「善意」
2016-10-25 聯合報

蔡總統在國慶演說呼籲北京當局正視中華民國存在的事實，然而，蔡總統其實應先要求她提名的大法官，正視中華民國以及中華民國憲法存在的事實。這不僅在應然面上根本涉及「不認同憲法的人，如何負責釋憲？」的問題，更在實然面引人產生「大法官可能把中華民國帶向何方？」的疑惑。

從民國三十八年一月六日的大法官釋字第一號，到今年十月廿一日的釋字第七四○號，六十幾年來，大法官們已經陸續依據憲法作成許多主旨涉及國家定位與兩岸關係的解釋。

早期一些大法官解釋，解決了這部在大陸制定、適用於整個中國的憲法繼續在台灣適用的問題；通過限縮憲法適用範圍，為中華民國憲政體制在台灣的實踐提供合理的解釋和合法化的基礎。例如，涉及立委與監委任期、國大代表總額計算標準、第一屆中央民代任期，以及國大代表與立委延任等問題的一些釋憲案，都在確保「值國家發生重大變故」的憲政體制維繫與運作，同時保持著台灣與中國大陸之間的法理聯繫，為中華民國的法統與政府的全國代表性提供正當性基礎。

隨著修憲而來的憲政變遷，讓務實解決兩岸定位問題日益迫切。兩岸交流衍生的問題，往往涉及人民基本權利與國家安全的衝突，也讓越來越多兩岸關係的法律規範必須接受合憲性的審查。大法官的解釋明確站在憲法增修條文「一國兩區」的立場，承認主權與治權的落差，區分治權之所及與所不及。換言之，在國家定位上，中華民國治權分裂；但就主權而言，只有一個國家。至於兩岸關係的法律規範，過去的大法官也堅持人民基本權利和自由保障優先的原則。

事實上，隨著台灣政治的變遷與區域情勢的演變，大法官對於憲法的解釋，已成為國家定位與兩岸關係發展的重要支柱。過去的大法官在不同時代作成的憲法解釋，不僅是構成我國憲政體制的支柱，也是蔡英文宣稱將致力維持的兩岸「現狀」的重要組成，更是蔡英文向中國大陸方面表達「最大善意」的憑藉。

但令人錯愕的是，蔡英文提名的大法官中，許宗力主張兩岸是「特殊國與國關係」，且中華民國主權並不包含中華人民共和國；許志雄鄙斥「中華民國憲法爛」，而中華民國則是「中國廢棄的國號」；黃昭元更說「中華民國只是內部講講，用以滿足鄉愁」，在在皆是對中華民國憲法的譏誚與否定。他們到底是要做憲法守護者，還是對憲法的恐攻者？

個別大法官未必能改變憲法解釋長期累積、充實的內涵，但當大法官會議結構及生態發生驟變，既有憲政內涵的崩解，並非不可想像。司法院包含正副院長共十五位大法官，釋憲應有三分之二大法官出席，出席者三分之二同意，也就是十位出席、七位同意才能通過。以這次七位大法官被提名人的政黨色彩分布，未來釋憲恐將大大傾斜。到二○一九年，另有四位大法官任期屆滿，蔡英文得以再提名後，更將徹底改造大法官會議生態。尤其，許宗力創下「再任」之惡例，黃昭元也毫不掩飾任滿後再被提名為司法院長的意願，繪出一幅未來大法官為留「後路」向政治權力靠攏的想像。

許宗力自認其「兩國論」的詮釋，對大陸是「相當友善的」；但這樣的「友善」，對岸恐難消受。陳水扁制憲失敗而無法達成的目標，是否可能通過釋憲來完成？尤其，憲法和兩岸人民關係條例是蔡英文處理兩岸關係的依據，而未來在許宗力主導、許志雄與黃昭元等人側翼助攻下，大法官會議在釋憲或統一解釋法律及命令時，對於兩岸關係定位的詮釋將表達怎樣的「友善」態度，又將如何充實蔡英文對中國大陸的「善意」內涵？思之，恐令人油然不安。