ASIA PROGRAM SPECIAL REPORT NO. 125 NOVEMBER 2004 INSIDE Taiwan’s Constitutional Reform: JIUNN-RONG YEH Hope or Nope: The Domestic Inspiration and External Second Call for a New Constitution in Taiwan Constraints page 4 JACQUES DELISLE ABSTRACT: This Special Report discusses both domestic inspirations for and external con- straints on Taiwan’s constitutional reform. Minister Jiunn-rong Yeh of the Research, Reforming/Replacing the Development and Evaluation Commission, the Executive Yuan,Taiwan, argues that a new con- ROC Constitution: stitution could enhance Taiwan’s democratic and effective governance, and help to develop a Implications for Taiwan’s Taiwanese national identity. Professor Jacques deLisle of the University of Pennsylvania Law State (-Like) Status and U.S. Policy School contends that a new constitution would worsen cross-Strait relations and challenge U.S. policy toward China and Taiwan. Professor Alan M.Wachman of the Fletcher School of Law and page 12 Diplomacy maintains that mutual accommodation between China and Taiwan is possible through dialogue.While the three essays all recognize the inevitability of some sort of constitu- ALAN M. WACHMAN tional reform, they vary on its final direction as well as possible implications for Washington- Constitutional Diplomacy: Taipei-Beijing relations. Taipei’s Pen, Beijing’s Sword page 19 Introduction United States? Does the United States have a Gang Lin role to play in influencing Taiwan’s constitu- tional reform, or the methods by which such ince Taiwan’s political democratization reform is carried out? The following three starting in 1986, the Constitution of essays explore these and related issues. S the Republic of China (ROC) has The first essay,by Minister Jiunn-rong Yeh experienced six rounds of revision. In recent of the Research, Development and Evaluation years, there has been a growing sentiment in Commission, the Executive Yuan, Taiwan, Taiwan to create a new constitution through a argues that Taiwan needs a new constitution national referendum. Many people in China because the previous six rounds of constitu- and the United States are concerned that such tional revision were undertaken to solve a move might be a watershed leading to immediate political problems and eventually Taiwan’s de jure independence from mainland created more institutional deadlock and politi- China, thus bringing the two sides of the cal instabilities. According to Yeh, the first call Taiwan Strait into a disastrous war. for a new constitution in Taiwan was made in What is the rationale behind Taipei’s pursuit early 1990. Because the then ruling party of a new constitution? What are the different (Kuomintang, or KMT) feared losing its polit- ASIA PROGRAM calculations of Taiwan’s politicians and ordi- ical dominance, these demands went nowhere. nary people on such a controversial issue? Incremental constitution revision became the What will be the advantages and disadvantages watchword for the democratization process in if Taiwan seeks to redefine its sovereignty and the following decade. territory in the new constitution? What are According to Yeh, since Taiwan has been Beijing’s possible responses to Taiwan’s consti- transformed into a full-fledged democracy,it is tutional reform, and the implications for the time for political elites and ordinary citizens to Gang Lin is program associate at the Woodrow Wilson Center’s Asia Program. ASIA PROGRAM SPECIAL REPORT engage in lengthy and comprehensive delibera- are legally and politically significant, as a new consti- tions—instead of short-term political bargains tution is often associated with a new state. among political parties—for a new constitution.The Moreover, to change or replace the constitution current constitution, with its many articles added through a referendum or other direct popular action over the years, is so unreadable that ordinary people would open the door wider to more radical substan- (even law students and sometimes lawyers) can have tive changes to the constitution, including redefin- trouble comprehending fully the current constitu- ing Taiwan’s territory in such a way as to renounce tional arrangement.Yeh contends that the difference Taiwan’s claim to the mainland.The idea of submit- between constitution-amending and constitution- ting a revised constitution to a 2006 referendum was making is actually very slight. An updated list of a staple of President Chen Shui-bian’s platform— human rights and more effective mechanisms for although the notion was absent from his carefully human rights protection should be incorporated vetted inauguration speech.The controversy over into the new constitution. He concludes that a new Taiwan’s constitutional reforms poses new chal- 2 constitution would enhance Taiwan’s effective gov- lenges for U.S. policy toward China and Taiwan, cre- ernance, promote deliberative democracy, and help ating a dilemma between U.S. pursuit of its “realist” to develop a new Taiwanese national identity, even national interests and support for democratic values. though it might provoke Beijing’s opposition or The third essay,by Professor Alan M.Wachman even hostility. of the Fletcher School of Law and Diplomacy, In the second essay presented here, Professor maintains that Beijing perceives Taipei’s constitu- Jacques deLisle contends that the principal argu- tional “re-engineering” as provocative. Beijing ments offered by Taipei for why Taiwan needs to believes President Chen Shui-bian has a “timetable undertake constitutional reform involve questions of for independence,” and that the introduction of a Taiwan’s status and cross-Strait relations. new constitution represents one giant step toward Constitutional revision that reconfirms Taiwan’s that objective. From this point of view, Beijing has democracy and protection of human rights would done nothing to signal its population that accom- highlight Taiwan’s independent status in the con- modating Taiwan’s determination to remain temporary world. Substantially revising the constitu- autonomous may better serve the national interest tion will inevitably make the document more clear- and enhance the possibility of China’s eventual uni- ly Taiwanese, and more deracinated from its main- fication. The entire policy and propaganda appara- land origins and Pan-China claim. tus of the PRC is, on this matter, now locked into a DeLisle points out that differences between mak- form of “groupthink with Chinese characteristics.” ing a new constitution and revising the current one According to Wachman, mutual accommodation between the two sides of the Taiwan Strait is still possible if Taiwan can persuade Beijing that it has THE ASIA PROGRAM not foreclosed some types of association with China. The United States should caution Taiwan The Wilson Center’s Asia Program is dedicated to the proposition that only those with a sound scholarly grounding can begin to that it cannot be truly independent so long as it is understand contemporary events. One of the Center’s oldest dependent on the U.S. military umbrella for sur- regional programs, the Asia Program seeks to bring historical and vival. It may be time for the United States to con- cultural sensitivity to the discussion of Asia in the nation’s capital. template how a reduction in arms sales to Taiwan In seminars, workshops, briefings, and conferences, prominent can serve as an incentive to Beijing to accept scholars of Asia interact with one another and with policy practi- tioners to further understanding of the peoples, traditions, and Taiwan’s autonomous status. behaviors of the world’s most populous continent. Senior Associate Bonnie S. Glaser of the Center for Strategic and International Studies offered com- Asia Program Staff: mentary on these three essays when they were first Robert M. Hathaway, Director Gang Lin, Program Associate presented at a July 21, 2004, seminar sponsored by Amy McCreedy, Program Associate the Woodrow Wilson Center’s Asia Program. She Wilson Lee, Program Assistant argued that Taiwan’s inspiration for a new constitu- tion is greatly constrained by Beijing’s opposition on TAIWAN’S CONSTITUTIONAL REFORM: DOMESTIC INSPIRATION AND EXTERNAL CONSTRAINTS this sensitive issue. After the collapse of the Soviet well as possible implications for Washington-Taipei- Union, most Eastern European nations were Beijing relations. In other words, to what degree democratized and wrote new constitutions. In con- Taiwan’s constitutional reform is—or should be— trast,Taiwan still faces “a 800-pound gorilla” which constrained by external factors remains debatable. has drawn clear red lines against Taiwanese inde- For example, the Taiwanese Yeh insists that Taiwan’s pendence and constitution-making. It is because of constitutional reform has nothing to do with a dec- U.S. intervention that Taipei has not redefined its laration of independence, while deLisle emphasizes territory as limited to the island. However, one Beijing’s possible reaction against a new round of should not rule out the possibility,Glaser cautioned, constitutional reform in Taiwan. Many American that President Chen Shui-bian may eventually readers will find it easy to disagree with one per- resort to a referendum for constitution-making.To spective or another in these pages, as will readers prevent a war between China and Taiwan, the two from the PRC and Taiwan. However, many believe sides should resort to negotiation and confidence that Beijing and Taipei should resort to negotiation building, starting with small moves, such as