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The Emergence of Modern Constitutional Culture in Taiwan*

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The Emergence of Modern Constitutional Culture in Taiwan* Article The Emergence of Modern Constitutional Culture in Taiwan* Tay-sheng Wang** & I-Hsun Sandy Chou*** ABSTRACT Taiwan encountered its first exposure to Western constitutionalism with the advent of Japanese rule in the late 19th century. The Japanese colonial government brought the system of separation of powers to Taiwan through its Meiji Constitution, though its scope was limited early on because the Taiwanese were not familiar with this system. However, during the latter period of Japanese rule, some Taiwanese elites applied the concepts in the Meiji Constitution to their struggles for civil rights, and to a certain degree succeeded. Since 1945, the Chinese Nationalist Party (KMT) government, which lacked experience with constitutionalism, had governed Taiwan for more than 50 years. The KMT government concentrated power in the administrative branch, and specifically in the party and the dictator himself. Nevertheless, for the sake of political expediency, the KMT government nominally abided by the Republic of China Constitution, which was drafted in China before the Communist revolution, though suspended many important provisions. Following the democratization and liberalization of Taiwan in the late 1980s as well as the change *** One of the authors of this article, Tay-sheng Wang, has published a Chinese version on the same topic in the National Taiwan University Law Journal (Vol. 36, No. 3) in September, 2007. For our English-speaking readers, we re-write the article in English and take Taiwan’s recent developments into consideration as well. The citations in this English version, therefore, are to a certain degree different from those of the Chinese version. The authors would like to thank Aaron Milchiker, a practicing lawyer and husband of I-Hsun, for his revising the English in the article and providing valuable comments. *** Tay-sheng Wang: Distinguished Professor of Law, National Taiwan University; Joint Appointment Researcher Fellow, the Institute of Taiwan History and Institutum Iurisprudentiae (Preparatory Office), Academia Sinica. E-mail: [email protected]. *** I-Hsun Sandy Chou: Adjunct Professor, Chapman University College; JSD, University of Chicago Law School, 2008. E-mail: [email protected]. 1 2 National Taiwan University Law Review [Vol. 5: 1 of the governing party in 2000, the separation of powers and the protection of human rights were greatly expanded in Taiwan. However, because these changes to liberty and democracy have only been in effect for about 20 years, the Taiwanese public does not entirely understand or accept the concept of constitutionalism based on liberty and democracy. The authors argue that only if all of the population groups in Taiwan embrace these values of freedom and democracy can the divided Taiwanese society be healed. Keywords: Modernity, Constitutional Culture, Colonial Rule, Rule by Law, Rule of Law, Separation of Powers, Human Rights, Democracy, Liberalism, National Identity 2010] The Emergence of Modern Constitutional Culture in Taiwan 3 CONTENTS I. INTRODUCTION ........................................................................................4 II. COLONIAL CONSTITUTIONAL CULTURE UNDER THE JAPANESE MEIJI CONSTITUTION.........................................................................................5 A. Constitutional Governance (Governing People According to the Constitution)......................................................................................6 B. Separation of Powers ........................................................................7 C. Protection of Basic Rights ...............................................................12 III. CONSTITUTIONAL CULTURE UNDER THE ROC CONSTITUTION: THE KMT PERIOD AND THE PRESENT DAY ...................................................13 A. Constitutional Governance..............................................................13 B. Separation of Powers ......................................................................18 C. Protection of Basic Rights ...............................................................25 IV. CONTEMPORARY CONSTITUTIONAL ISSUES IN TAIWAN.........................29 A. Free but Divided Society .................................................................29 B. Democratic but Polarized Politics ..................................................31 V. C ONCLUSION..........................................................................................33 REFERENCES .................................................................................................36 4 National Taiwan University Law Review [Vol. 5: 1 I. INTRODUCTION The main concern in this paper is the extent to which men and women in Taiwan possess the modern constitutional culture. The term “modern constitution” or “modern-style constitution” refers to constitutions developed or promulgated in Western countries since the seventeenth century. For example, the Bill of Rights of 1689 in England, the Declaration of Independence of 1776, the Constitution of 1787 and the Bill of Rights of 1791 in the United States, and the Declaration of the Rights of Man and of the Citizen of 1789 in France. The key principles underlying these modern constitutions are constitutional governance, separation of powers and protection of basic rights. These three principles are implemented through a legal system, which include statutes, regulations and decisions of the state. The legal system, however, should be defined broadly to also include legal professionals and the ideas and concepts of the general public regarding law.1 The emphasis of this article is whether a “constitutional culture” exists in Taiwan, thus we will not merely examine the written Constitution of Taiwan and whether it integrates the three key constitutional principals, but rather whether and the extent to which these principles are already rooted in the consciousness and lifestyle of the Taiwanese public. Modern constitutions were born in western societies; these societies went through their own cultural enlightenments and developed capitalist systems which gave rise to a middle class, and these developments informed the creation of the modern constitution. East Asian countries, including Taiwan, have had their own cultural and socioeconomic development, which has tended to emphasize the domination of emperor and father, and likened the relationship between government and citizen to the relationship between parent and child.2 Therefore, when considering East Asian societies, we cannot merely ask whether written constitutions guarantee important basic principles, but also must inquire into whether the people in the culture have accepted and understood these principles. East Asian scholars have generally studied constitutional theory as it developed in Western cultures, and have applied this analysis directly to Asian societies without considering the differences between Asian and Western cultures. It might be advisable, then, to examine local constitutional culture before applying Western constitutional theory to East Asian societies. This article attempts to begin this analysis by considering the Constitutional culture in Taiwan. 1. LAWRENCE M. FRIEDMAN, THE LEGAL SYSTEM: A SOCIAL SCIENCE PERSPECTIVE 193-94 (1975). 2. See generally DERK BODDE & CLARENCE MORRIS, LAW IN IMPERIAL CHINA 29, 33-38 (1967). 2010] The Emergence of Modern Constitutional Culture in Taiwan 5 For this purpose, we will describe the cultural context and ideas behind the constitutional laws developed in different historical periods in Taiwan, primarily through the examination of government archives.3 For years, government archives in Taiwan have been kept separately by different government departments and few were open to the public. Systematic perseverance of government archives in Taiwan did not begin until 2001. Archives that are related to constitutional laws are now kept by the National Archives Administration, but these archives are mostly post-war documents. To capture the pre-war constitutional culture, we consulted government archives and private documents from the Academia Historica in Taiwan and the National Archives of Japan. Finally, we also interviewed a number of retired legal professionals. In examining historical archives concerning Taiwan constitutional law, it is often important to read between the lines and consider the cultural and societal background of the drafter. Through the analysis of the texts and discourse appearing in archives and documents, we want to demonstrate the situation of the applicable period and the ideas of the contemporary population relating to constitutional principles. We will discuss some official or unofficial legal interpretations, but will focus on the social contexts behind these interpretations and their underlying recognition or ideology. We will not, however, comment on the legitimacy of the arguments presented in these legal interpretations. II. COLONIAL CONSTITUTIONAL CULTURE UNDER THE JAPANESE MEIJI CONSTITUTION Taiwan was first introduced to the idea of modern constitution under Japanese colonial rule. We will explore whether or to what degree the modern constitutional culture emerged in Taiwan under Japanese colonial rule (1895-1945). 4 The three principles of modern constitution: 3. We define the constitutional culture to include both the legal culture related to legal professionals and the legal culture as understood by the public. When we examine the governmental archives of Taiwan, however, the documents tend to primarily reflect
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