In an effort to clarify some of the issues both historically and currently, FCR asked Dr. Hsu Chieh-lin, a political scientist at National Taiwan University, to discuss what he thinks to be some of the key constitutional issues now facing the nation.
The ROC Constitution was adopted by the National Assembly held in Nanking 1946, was promulgated by the National Government on January 1, 1947, and became effective on December 25 of the same year. In addition to the preface, there are 14 chapters in the Constitution, consisting of 175 articles. The preface states that the Republic of China was founded in accordance with the teachings of Dr. Sun Yat-sen, Founding Father of the ROC.
After consulting Chinese tradition and foreign systems, Dr. Sun originated a five-power constitutional theory, emphasizing that the people have the powers to control the government while the government has the ability to run the country. In his theory, powers are divided into political and governing powers. On the one hand, the political powers are held by the people, including suffrage, recall, initiative and referendum. On the other, the government holds executive, legislative, judicial, examination, and control powers.
When the ROC Constitution was written 40 years ago, it was formulated for all Chinese people and territories. But since the central government moved to Taipei in 1949, obviously the provisions of the Constitution could not be completely carried out because the mainland was occupied by the Chinese Communists.
Moreover, four decades have passed since the enactment of the Constitution, which naturally means that some regulations are no longer up to date. As a result, there is some discrepancy between the ideals specified in the Constitution and its actual operation.
According to the Constitution, be sides the five-power government, there is a National Assembly organized by people's representatives from various levels according to Constitutional provisions. One of the functions of the National Assembly—as stated in Article 27, Item 4—is to vote on proposed Constitutional amendments submitted by the Legislative Yuan by way of referendum, a procedure adapted from Switzerland by Dr. Sun.
Regrettably, the National Assembly has had no opportunity to respond to a referendum so far, for there is a proviso in the Constitution governing the holding of any referendum; namely, "with respect to the rights of initiative and referendum ... the National Assembly shall make regulations pertaining thereto and put them into effect, after the above mentioned two political rights shall have been exercised in one-half of the Hsien (Counties) and Municipalities of the whole country." For the time being, it is unlikely that the requirement of the proviso can be fulfilled, therefore the National Assembly cannot exercise the rights of initiative and referendum without going against the Constitution. Thus the functions of the National Assembly have been limited mainly to electing the President and Vice President of the Republic.
Since there are no exact counterparts for the ROC National Assembly in other countries, people frequently ask if the National Assembly can be regarded as the ROC Congress. Delegates of the National Assembly, the Legislative Yuan, and the Control Yuan are all elected from the people. And each supposes itself the ROC "Congress." It has been suggested that the National Assembly be reorganized as the Senate, and the Legislative Yuan as the House of Representatives, while the Control Yuan can serve an oversight function monitoring all government employees. Should this ever happen, the dispute about the "Congress" will no longer exist.
Scholars have also been in frequent disagreement about how best to describe the administrative system of the ROC. Some say it is presidential, some think it is a cabinet system, and others think it lies somewhere between the two. The confusion is understandable because the Constitution does combine both presidential and cabinet features.
In the actual operation of the Constitution, the Premier is responsible to the Legislative Yuan, while the Legislative Yuan along with other four Yuans, are responsible to the President. In other words, the Premier is also responsible to the President. This means that political stability depends on the personality of the President, which in turn means that whether the President is a strong-willed person or not can substantially influence the political situation.
As mentioned earlier, part of the Constitution has not been completely put into practice owing to the moving of the central government to Taipei in 1949. For example, the delegates of the National Assembly, the Legislative Yuan, and the Control Yuan could not be reelected within the prescribed years (every 6 years for the National Assembly and the Control Yuan, 3 years for the Legislative Yuan) according to the Constitution.
The ideal of local self-government is also subject to the proviso that all of China is under the control of the central government. The status quo in Taiwan is that there is no substantial difference between local and central governments. In Article 113, Item 2, it says that "there shall be a Provincial Government with a Provincial Governor who shall be elected by the people of the Province." For the time being, the Governor is not elected by the people of the Province; instead, he is assigned by the President in response to the extraordinary political situation.
In recent years there has been more pressure to increase the efficiency of government administration, including attempts to promote more local self-government. This has flowed from a higher political awareness among the people, and a realization that local constituencies know their own problems best. Transportation and garbage issues, for example, probably should be left to local governments. Money is always a problem, but there is Constitutional provision for this; it says that the central government may subsidize local governments when they find their funds insufficient. Thus, the central government has the opportunity to avoid interfering too much with local affairs.
The ROC Constitution has some rather remarkable provisions that are not found in other constitutions. Article 134, for example, says that "In the various kinds of elections, the number of women to be elected shall be fixed and measures pertaining thereto shall be prescribed by law." Because the Constitution was written in an age when China was still deeply influenced by ideas that severely restricted women, the Constitution provided them special protection. With the advent of rapidly changing attitudes about the roles of women in the late 20th Century, women can now compete more equally with men and even surpass them. It therefore seems unnecessary to guarantee women candidates in elections any more, for protection can sometimes limit the protected.
Article 138 of the Constitution says, "The land, sea, and air forces of the whole country shall be above personal, regional, or party affiliations, shall be loyal to the State, and shall protect the people." Moreover, Article 140 specifies that "no military man in active service may concurrently hold a civil office." The provisions are precautionary measures against military men becoming involved in politics. These articles compare favorably with the civilian control of other developing countries, and are equivalent to provisions found in the constitutions of Japan, the U.S., and many European countries.
The framers of the Constitution were deeply concerned about stability, and were opposed to force being used as the means to solve political conflicts. Even though the constitutions of other countries may have similar specifications, unfortunately many developing countries have been unable to abide by them, meaning that coups remain a constant threat. The ROC has been fortunate in avoiding this problem because its military has been governed by, and has abided by, Constitutional restraints.
Laborers and farmers both receive special protections from Article 153 of the Constitution.
Following World War II, socialism became a major trend of thought, and also had some impact on the ROC Constitution. In Article 15, for instance, it states with socialistic color that "The right of existence, the right of working ... shall be guaranteed to the people." Articles 152 to 157 include social security provisions as well, stating that laborers, farmers, women, children, the aged, the infirm, and victims of unusual calamities should be protected or assisted by the State. These passages indicate that the ROC has certain welfare state tendencies.
Current economic development in the ROC on Taiwan has enabled these provisions to be carried out in fact, instead of only remaining ideals. Though social welfare is common in most developed countries, it is not found in most underdeveloped and developing countries. In the case of the ROC Constitution, an idealistic position taken long ago now has become a reality.
Because the ROC Constitution has some socialistic orientations, it therefore places certain restrictions on private capital, while encouraging the government to run businesses that are influential in public welfare or might monopolize the market in case of being owned privately. Article 142 states: "National economy shall be based on the Principle of People's Livelihood and shall seek to effect equalization of land ownership and restriction of private capital in order to attain a well-balanced sufficiency in national wealth and people's livelihood." But facts have indicated that some public operated enterprises are less efficient, have bad service, and are often in the red. This has prompted some people to suggest that these businesses might be in better shape if they were operated by private citizens. Japan's experience with its highly reputed private railways is frequently cited as an example of success in this area.
Times are changing in the ROC, however, because some businesses originally thought to be potential monopolies have not turned out to be so, leaving room for competition. And with respect to restrictions on private capital, in some specific areas the ROC actually encourages private capital rather than restricting it. For example, the big trading companies that have more than US$5,000,000 capital investment can receive favorable treatment from the government. The maximum business tax they have to pay is 20 percent. Nevertheless, not all publicly operated enterprises should be run by private citizens. For instance, the ROC has one of the best public Post Office operations in the world. Similar enterprises certainly should be operated by the public sector to guarantee the general welfare.
Since 1968, Constitutionally guaranteed levels of compulsory education have been exceeded in Taiwan.
Other Constitutional provisions are showing their age, and indicate how much the world has changed since the end of World War II. One instance concerns education and culture. Article 160 says that "All children of school age from six to twelve years old shall receive free primary education ... " In reality, ROC children from six to 15 years of age have benefitted from compulsory education since 1968. Moreover, the government now is considering the extension of compulsory education from nine to twelve years.
Article 164, which also deals with education, indicates that expenditures for educational programs, scientific studies, and cultural services shall not be, in respect of the Central Government, less than 15 percent of the total national budget. Unfortunately, most of the time the expenditures for the above mentioned are actually lower than specified.
Furthermore, according to the Constitution, "The State shall safeguard the livelihood those who work in the fields of education, sciences, and arts.... " Although all government employees, including teachers, have received about 10 percent raises in salary since July 1987, when compared with middle and high ranking people in the private sector, the raises still appear inadequate. Professors' salaries, for example, are about one-half that of middle and high-ranking employees in private enterprises.
Basically speaking, the ROC Constitution for the most part is quite an ideal code for the nation. But due to unfortunate barriers caused by the political environment, it has not been completely carried out. Any code, no matter how perfect it is, becomes empty if it has not been put into practice. These days, the ROC is making impressive progress in political development. And the changes have been well reported domestically and internationally, especially the lifting of the Emergency Decree. Therefore, the outlook for putting all the content of the Constitution into practice is optimistic. But one major limitation remains. Since mainland China is still occupied by the Chinese Communists, the realization of the ideals of the Constitution, and its benefits for all China's people, must wait until the mainland is recovered. —(Dr. Hsu Chien-lin is a professor of political science at National Taiwan University).