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