TAICHUNG (Taiwan News) — The constitution Taiwan uses today was passed by the National Assembly of the Republic of China (ROC) in Nanjing on Dec. 25, 1946. It came into force a year later on the same day and elections were held soon after across China.
It was written by the Kuomintang (KMT) for the Kuomintang, and they unsurprisingly won almost all of the seats. Taiwan, though under ROC control at the time, wasn’t even allowed to vote in that election.
Chen Yi (陳儀), who was ruling Taiwan for the ROC with an iron fist and had imposed martial law just 11 days prior to the election, is described in George Kerr’s Formosa Betrayed as explaining Chen's reasoning behind not applying the constitution to Taiwan: “The mainland Chinese, he said, were advanced enough to enjoy the privileges of constitutional government, but because of long years of despotic Japanese rule, the Formosans were politically retarded and were not capable of carrying on self-government in an intelligent manner.”
With such a charming attitude, it’s no wonder the Taiwanese rose up in revolt just over one month after the election on Feb. 28, 1947. My previous column on the history and some of the weird features of the constitution brought up two questions:
First, does a constitution written for China really represent diverse and distant Taiwan? Second, does a constitution originally written effectively by and for a single Chinese political party represent Taiwanese values?
Hope for new constitution
There are many in Taiwan that would like a new, homegrown constitution. Most prominently, Vice President Lai Ching-te (賴清德).
Could Taiwan get a new constitution? In the short term, not, there are some serious technical barriers to it happening. First, how would it even be accomplished legally?
My best guess is that it would follow the current procedures for amending the constitution, with the amendment essentially being “replace all previous articles in the constitution with these new ones.” Would the KMT stand for this, or even participate in negotiations to make it happen?
Not likely. They are rather possessive over their constitution, retaining the name Republic of China and keeping a barely disguised version of the KMT party emblem as the national emblem and on the flag.
If you’re curious, the difference between the KMT emblem and the national emblem is there is more blue space separating the white sun and the rim of the circle. Attempts to change this situation consistently have been proposed, but gone nowhere.
As things stand, the KMT would have to be on board for this. This is because a motion to amend the Constitution must be sponsored by at least 25% of legislators to be valid and approved by at least 75% of the members present at a meeting attended by at least 75% of the 113 lawmakers.
The KMT and one pan-blue independent currently make up 35% of the legislature, giving them effective veto power. That will likely remain the case until the 2024 elections.
Math on a referendum
Even if it passed the first hurdle and the KMT did get on board and vote for it, as unlikely as that seems, there is a second barrier to overcome: A referendum that needs to be passed by more than half of the total number of eligible voters, which stood at over 19.31 million in 2020.
Note that is eligible voters, not actual voters, and turnout is never 100% in an election. So something like 9.7 million people would need to vote for it.
The 2020 elections had a 74.9% turnout, or 14.52 million voters, which was abnormally high. At that high turnout, which is unlikely, almost exactly two-thirds would need to vote affirmative on the referendum, which is a high bar.
Whether voters would come out in such high numbers to vote for this would depend on what is in the new constitution, and how China responded to it. If, for example, the constitution omitted the name Republic of China, China would no doubt issue threats.
That might be enough to scare off some voters who might think that the current constitution is working well enough, and that changing it isn’t worth risking war. That might make it hard to pass the minimum threshold to pass.
What needs to change
For an entirely new constitution, several things would have to change. First, the KMT would need to fall below 25% in the legislature, or have a major change of heart, and all other parties would need to be on board.
Second, a president would need to be elected who was fully behind the project, such as Lai Ching-te. Third, the public would need to be show overwhelming support for it.
Democratization
More likely, however, is that the current constitution will be kept, but improved upon. That has been the situation up to now.
It has been amended seven times, and if the referendum on lowering the voting age to 18 in this year’s election passes, that would make it eight. In every case, the KMT has not only been on board for these amendments, they spearheaded much of the reform process.
Mostly, these amendments were necessary to allow for democratization, such as allowing the public to vote directly for the president, which wasn’t in the original constitution. Originally, the constitution had a dedicated National Assembly whose job was to amend the constitution and elect the president to six-year terms.
The amendments that have been passed since 1991 are fairly extensive and reworked much of how legislation is handled, restructured the government, opened the ability to hold elections in only the areas actually administered by the government, and changed how referendums are held. Essentially, the Taiwanese have taken the constitution and reworked and adapted it, as Taiwanese have done with so many things. That, realistically, is probably the most viable way forward in the short to medium term.
But hopefully not forever.
