It is generally thought that his services as president are indispensable at this critical moment, that none other can command comparable prestige for the present national crisis. The natural alternative would be to amend the constitution. But the consensus of opinion appears opposed to constitutional amendment, including that of President Chiang himself.
The Constitution was adopted in 1947 on the mainland by the mandate of the Chinese people as a whole, and therefore constitutes a potential weapon against the Chinese Communists. An overwhelming majority of the proponents deem it necessary to introduce a provisional clause permitting the President to hold the office, while the military struggle is still in progress. The provisional clause would be patterned after the previous one which was promulgated on May 10, 1948, authorizing the President to take, during the interval of national crisis, "emergency measures to avert an imminent danger to the security of the state," or "to cope with any serious financial or economic crisis, without being subject to the procedural restrictions prescribed in Article 39 or Article 43 of the Constitution." Following this precedent, the envisaged provisional clause, if proposed, would lift the present restriction on the president's term of office. It is also possible that the new clause would be incorporated into the original one, in which case the National Assembly would propose an amendment.
In either case some extremely delicate constitutional issues will inevitably arise. These affect the nature of the provisional clause, and the procedure to be followed in case of amendment of the same. The function of the National Assembly is, inter alia, to elect the president and the vice-president, and to amend the Constitution. To amend the original provisional clause entails the same procedure as amending the Constitution, which requires one-fifth of the total number of the delegates to make the proposal, to be adopted by a resolution of three-fourths of the delegates present at a meeting, having a quorum of two-thirds of the entire Assembly (Article 174, paragraph 1 of the Constitution). The same Article provides also that the members of the Legislative Yuan may propose to make amendments, which, if passed, shall be published half a year before the National Assembly convenes. The latter alternative is now out of the question, as the half-year limit has already expired. The only alternative then is for it be proposed by the National Assembly.
Since 1949 the number of the Assembly delegates has considerably diminished. Many are presumably still alive on the mainland, but their whereabouts for the last ten years are unknown. Others have died or are missing. There were a total of 2,962 delegates in 1948, 1,643 in 1954, and 1,574 now. When the Constitution was adopted in 1947, the total membership of the National Assembly was set at 3,045, but never during the span of the last thirteen years has that figure been reached. If the original figure is used, the present delegates fall far short of the requirements of the two-thirds majority necessary for passing an amendment. This poses an extremely thorny issue concerning the Constitution, which is virtually denied a new lease of life. Moreover, the number of delegates will continue to drop through death or other reasons, until and unless a new election can be held later on the recovered mainland. The two-thirds majority is not possible before that time. This state of stalemate not only hampers the growth of the Constitution, but impairs the national interest. It becomes impossible to make the best use of the Constitution in the struggle of anti-Communism. To this extent, the proposed amendment on the presidential term of office is but one of the minor issues.
The following spells out the basic questions of the substance and the procedures of amending the provisional clause:
1. The substance of the provisional clause: To all intent and purpose, the provisional clause lasts during the period of national crisis. It necessarily differs from a constitutional amendment in the sense that it does not propose to make an alteration, change, detraction and/or addition to the original text of the Constitution. It is aimed at suspending an article or articles during the prescribed period, leaving entirely intact the original text. As soon as the prescribed time limit elapses, the article in question resumes its enforceability. It frequently happens in law that the implementation of a legal act is deferred to a later date, without compromising the effect of the act itself. A conditional promise or a promise implying an effective date may be deferred in its enforcement or may lose its effect, when the condition is fulfilled or the date has arrived. It also happens in international politics that a term of office may be extended beyond the original limit due to national exigency or the progress of a war. Such an extension has not been considered as an amendment of the constitution or the law.
The British constitution is in point here. Constitutionally, the maximum life of a House of Commons is five years. It has been set at three years by the Triennial Act of 1694, extended to seven year as by the Septennial Act of 1716, and fixed at the present limit by the Parliament Act of 1911. A general election almost always takes place every five years in time of peace. But the Parliament extended its own life during the two World Wars in order to prevent repercussions due to an election. The Parliament of 1910 was not changed until the end of 1918, and the British Government withheld a general election from 1935 to 1945 (H. Stout, British Government). Never have the constitutional lawyers considered that the British constitution was thereby amended. The involuntary suspension was, it is submitted, forced by the considerations of national interest and military exigency. The temporary suspension of Article 47 of the Chinese Constitution concerning the president's term of office rests on the same grounds.
2. The question of "total membership": As the provisional clause exercises direct influence upon the constitution, though not a part thereof, it appears that its enactment or revision will have to comply with the procedures as mentioned in Article 174 of the Constitution. As previously intimated, the total membership now is not sufficient to meet the requirements necessary for amendment. But the term "total membership" is left undefined in the Constitution. There are several schools of thought.
One school takes the position that to the Rules Governing the Enforcement of the Law of Election and Recall of the Delegates of the National Assembly is attached a table, which clearly fixes the delegates at 3,045.
A second school proposes that the total membership shall be fixed according to the Organic Law of the National Assembly, which expressly provides that the Assembly shall be organized by the delegates elected. The delegates actually elected were 2,962.
A third school thinks that the total membership shall be composed of those delegates who have reported their presence after being elected. Since March 29, 1948 the delegates who have made such a report are 2,841.
A fourth school is of the opinion that the total membership shall be limited to those delegates who are either here or may come to Taiwan, and can perform their duties as entrusted to them by the electors.
These four schools of thought have approached the problem from different points of view. True it is that when the Law of Election and Recall of the Delegates was promulgated in 1947, the total membership was conceived to be 3,045, but this objective was not attained. It is highly unrealistic to base anything on a figure which has in fact not been in existence. The second school is more practical in founding its theory upon the member of delegates who were actually elected, but fails only to detract those who have never made their appearance before the Assembly. Legally, to report their presence is an indication of their willingness to serve as delegates, and is prerequisite to the right of membership. It follows that the third and fourth schools are relatively of practical value, as the delegates have complied with all the necessary requirements by presence and per forming their duties. Nothing is more important than to mould the Assembly into a workable mechanism to exercise the superb function of electing the chief executive and of amending the supreme law of the land. It is futile to count on absenteeism which merely reflects an impossibility to make the constitution a living reality. To bridge the gap of diminished membership, the Legislative Yuan adopted a bill in 1953, permitting the candidates to fill up the vacancies left open by the absentees. The bill mentions the following reasons for disfranchisement:
(1) Commission of treason or mutiny, for which a final judgment is rendered;
(2) Commission of receiving bribery, for which a final judgment is rendered;
(3) Disfranchisement of civic rights not yet reinstated;
(4) Pronounced by a court of law as an interdicted person;
(5) Missing over three years and having failed to report the same to the competent agencies within the prescribed time;
(6) Collaboration with the Chinese Communists to be borne out by positive evidence, and being under arrest according to law.
Other reasons may be added, such as death, resignation and the like, which resulted in a total membership of 1,643 in 1954 of those who had officially registered their presence. The number is now slightly decreased to around 1,500 persons. The question presenting itself is whether the last mentioned number can be taken to represent the total membership in a legal sense.
Law must keep pace with social changes, especially the constitution which is highly inflexible as compared with its kindred laws. It largely depends upon judicial construction and amendment to temper its rigidity, in order to enable it to respond to the contemporary call. The U.S. Constitution has proved its adaptability to the changing circumstances in spite of a stream of loopholes, thanks to the interpretation of the constitutional power exercisable by the federal Supreme Court. In the fields of both public law and private law, matters undergoing violent change of circumstances entitle the injured party to be released from obligation, though conditionally. In Roman Law, every contract carried with it the implication rebus sic stantibus. On treaty, Prof. Hall commented, "A treaty becomes voidable as soon as it is dangerous to the life or incompatible with the independence of a state, provided that its injurious effects are not intended by the two contracting parties at the time of its conclusion." (Hall, Int. L. Sec. 116) If this doctrine is made applicable to cases of civil and international laws, there is stronger reason for its application in constitutional law. The latter is more than any other inextricably interwoven with national interests. In Weem v. U.S., Mr. Justice McKenna stated, "Time works changes, brings into existence new conditions and purposes. Therefore a principle to be vital, must be capable of wider application than the mischief which gave it birth. This is particularly true of constitution." Thus in National Prohibition Cases, Mr. Justice Van Devante discussed the issue of amendment procedure by saying: "The two-thirds vote in each House which is required in proposing an amendment is a vote of two-thirds of members present—assuming the presence of a quorum—and not a vote of two-thirds of the entire membership present and absent." (Missouri P. R. Co. v. Kansas, 248 U.S. 276). Article 5 of the U.S. Constitution provides only for two-thirds of both Houses to propose amendment, without mentioning the presence of the entire membership. The reason for this judicial interpretation is not difficult to search. Were an opposite construction adopted, the Houses would be in a difficult position to amend the constitution in order to suit the change of circumstances. In this way, the stumbling-block is removed by the judicial agency, which would otherwise play havoc upon the law-making body.
There are further instances in the U. S. constitution law, which render the enacted written document automatically adaptable to the new needs through judicial interpretation, without even making any formal amendment on the text. For illustration, the Supreme Court of Illinois declared it improper in 1895 to regulate the labour or hours of women differently from that of men, and in 1910 arrived at precisely the opposite view, without any change whatever in the state constitution. (Ritchie v. People, 115 111.98) In distinguishing, limiting or reversing previous decision, the American states have made noticeable constitutional progress. It has been 173 years since the federal Constitution was adopted. The century-old enacted document can still keep abreast of the violent social changes—a fact due immeasurably to the visions entertained by the eminent justices.
In final analysis, a constitution subserves the best interests of the state, it is not the state which subserves the constitution. Our constitutional issue of "total membership" should be determined within the context of the factual reality. Over-emphasis upon the literal sense of the constitutional wording may stifle an organic mechanism Prof. Corbin aptly pointed out in the Fall issue of Yale Law Report of 1959, "Law is a living growth, not changeless code," which may also guide the path of constitutional construction.