Defuse the Move for Advancing De Jure Taiwan Independence

Defuse the Move for Advancing De Jure Taiwan Independence

China Times Editorial (Taipei, Taiwan, ROC)

A Translation

October 27, 2016

Executive Summary:

What is done is done. Tsai Ing-wen has nominated pro-Taiwan independence-oriented Grand Justices. The Legislative Yuan has also confirmed them. They are about to take office. But judicial independence under our Constitutional framework means that the Grand Justices are not under the President's control. A fuse has been laid for a disaster, and may be lit any time. We must now see whether the Grand Justices themselves believe in Constitutionalism.

Full Text Below:

Tsai Ing-wen's nominees for Judicial Yuan president and vice president, as well as other Grand Justices have been confirmed by the Legislative Yuan. For Tsai Ying-wen and nominees for Grand Justices, confirmation was easy. But the real difficulties lie ahead. These difficulties are not merely Tsai Ying-wen's difficulties. They are difficulties for the Republic of China, and for cross-Strait peace.

The first difficulty involves the predicament of Grand Justices' oath of office. They must "Swear to be honest, to abide by the laws and regulations of the nation, to dedicate myself to duty, to serve the nation, to avoid squandering public funds, to avoid nepotism or cronyism, to avoid graft and corruption, and avoid taking and receiving bribes. If I violate my oath, I am willing to accept the harshest possible punishment. So do I swear.” According to the Oath-taking Statute, this is the oath the Grand Justices must swear upon taking office.

To "abide by the laws and regulations of the nation” refers of course to the Constitution of the Republic of China. According to the preamble of the Constitution, the Grand Justices must serve "the Republic of China founded by Dr. Sun Yat-sen.” That refers to the Republic of China founded in 1912 following the revolution led by Dr. Sun Yat-sen. Its flag is the “white sun in blue sky over crimson ground” flag, per Article 6 of the Constitution. Its historical territory is defined by Article 4 of the Constitution. It is important to note that the oath is not merely a matter of conscience. Under the law, an oath is not merely a pro forma ritual. According to Article 8 of the Oath-taking Statute, if one refuses to take the oath, one is considered as not having assume office. According to Article 9, "Anyone who takes the oath but violates it shall be punished harshly in accordance with the law."

Will Hsu Chung-li, Hsu Chi-hsiung, and Huang Chao-yuan swear to abide by the Constitution enacted in accordance with the teachings of Dr. Sun Yat-sen? Will they swear to serve the Republic of China? Or will they merely pay lip service to serve the nation, while secretly clinging to such notions as "special state-to-state relationship," "not a normal nation" and "domestic consumption of nostalgic longings"?

The new Grand Justices to be sworn in may say one thing while thinking another. But even if they get away with this, they face an even tougher hurdle—misgivings that the new Grand Justices will use Constitutional interpretations in judicial review to smuggle their personal Taiwan independence thinking into the Republic of China's Constitutional framework. If the new Grand Justices deliberately abuse their power in this manner, three betrayals and one disaster will follow.

The first betrayal, needless to say, would be the betrayal of the Republic of China and its Constitution. The second betrayal would be the betrayal of President Tsai Ying-wen, who nominated them because they would change the status quo that Tsai Ing-wen repeatedly pledged to maintain. The third betrayal would be exceeding the Grand Justices' authority, as noted in Constitutional Interpretation No. 499. In 1999, the National Assembly voted for an amendment to extend their own terms. A request for a Constitutional interpretation followed. The Council of Grand Justices promulgated Constitutional Interpretation No. 499 ruling that the National Assembly's amendment was unConstitutional.

The Constitutional Interpretation No. 499 established limits to Constitutional amendments. If Constitutional amendments have limits, never mind Constitutional interpretations. Constitutional Interpretation No. 499 refers to the “principle of a democratic republic," "the principle of popular sovereignty," "the protection of people's rights" and "the principle of the separation of powers and checks and balances". The Preamble of the ROC Constitution refers to the origins of the Constitution. Its Article 4 refers to the "existing territory." Together, they touched upon the history, type of statehood, spirit of nation-building, and scope of sovereignty. These are even more fundamental in character.

The only way to overthrow or fundamentally change the Constitution is to author an entirely new Constitution. Such are the limits of Constitutional amendments, as well as limits of Grand Justices. On this point, those in the know are concerned. They would remind Taiwan independence-oriented Grand Justices. Do not abuse the process of Constitutional interpretation. Do not use it to violate the Constitution. Do not use it to make substantive changes to the Republic of China's Constitutional history and founding spirit, in an attempt to covertly author a new Constitution and change the type of statehood.

If the new Grand Justices are bent on extremism, they will bring about a catastrophe that crosses the line in the sand over to de jure independence. The CCP leadership must then bow to nationalist sentiment on the Mainland. This would be tantamount to removing the Mainland’s self-imposed restrictions of not to use force against Taiwan. This means disaster for Taiwan, disaster for both sides of the Strait, and disaster for the Chinese nation.

Faced with public doubts, the Grand Justices must be prudent during their swearing-in. They must publicly declare that they will never to use the Constitutional interpretation process to smuggle their personal Taiwan independence ideology into the Republic of China Constitutional framework, in an attempt to implement de jure Taiwan independence to transform the Republic of China. Also, when interpreting the Constitution, the Grand Justices must remember the self-restraint the Council of Grand Justices demonstrated, per Constitutional Interpretation No. 328, on such a momentous political issue as the territory of the Republic of China. They must have the self-restraint and wisdom that such an issue should not be interpreted by a judicial organ with power for judicial reviews.

What is done is done. Tsai Ing-wen has nominated pro-Taiwan independence-oriented Grand Justices. The Legislative Yuan has also confirmed them. They are about to take office. But judicial independence under our Constitutional framework means that the Grand Justices are not under the President's control. A fuse has been laid for a disaster, and may be lit any time. We must now see whether the Grand Justices themselves believe in Constitutionalism.

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