Constitution of the Republic of China
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Constitution of the Republic of China | |
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First executive | 20 May 1948 (President) 24 May 1948 (Premier) |
First court | 2 July 1948 |
Repealed | 1 October 1949Mainland China) | (
Amendments | see Additional Articles of the Constitution of the Republic of China |
Location | Academia Historica, Zhongzheng, Taipei[3] |
Commissioned by | National Constituent Assembly |
Author(s) | Carsun Chang and the members of the National Constituent Assembly |
Signatories | 1,701 of 2,050 delegates, in Nanjing |
Supersedes | Provisional Constitution of the Republic of China |
Constitution of the Republic of China | |||||||
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Chinese name | |||||||
Mongolian Cyrillic | Үндсэн хууль Дундад иргэн улс | ||||||
Mongolian script | ᠦᠨᠳᠦᠰᠦᠨᠤ ᠬᠠᠤᠯᠢᠤ ᠳᠤᠮᠳᠠᠳᠤᠤ ᠢᠷᠭᠡᠨᠤ ᠤᠯᠤ | ||||||
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Uyghur name | |||||||
Uyghur | جۇڭخۇا مىنگو ئاساسىي قانۇن | ||||||
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Manchu name | |||||||
Manchu script | ᡴᠣᠣᠯᡳᠤ ᡶᠠᡶᡠᠨᠤ ᡩᡠᠯᡳᠮᠪᠠᡳᠤ ᡳᡵᡤᡝᠨᠤ ᡤᡠᡵᡠᠨ | ||||||
Romanization | Kooli Fafun Dulimbai irgen' gurun |
The Constitution of the Republic of China is the fifth and current constitution of the Republic of China (ROC), ratified by the Kuomintang during the Constituent National Assembly session on 25 December 1946, in Nanjing, and adopted on 25 December 1947. The constitution, along with its Additional Articles, remains effective in ROC-controlled territories.
Intended for the entire territory of the Republic of China as it was then constituted, it was never extensively nor effectively implemented due to the outbreak of the Chinese Civil War in mainland China at the time of the constitution's promulgation. The newly elected National Assembly soon ratified the Temporary Provisions against the Communist Rebellion on May 10, 1948. The Temporary Provisions symbolises the country's entering into the state of emergency and granted the Kuomintang-led government of the Republic of China extra-constitutional powers.
Date | Other basic law | Government location | Timespan |
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25 December 1947 – 10 May 1948 | — | Nanking | 4 months |
10 May 1948 – 7 December 1949 | Temporary Provisions against the Communist Rebellion |
Nanking, Kwangchow (Canton), Chungking, Chengtu | 1 year, 6 months |
7 December 1949 – 30 April 1991 | Taipei | 41 years, 4 months | |
1 May 1991 – present | Additional Articles of the Constitution |
32 years, 11 months |
Following the
During the 1990s and early 2000s, the Constitution's origins in mainland China led to supporters of
History
Origins
Colonial history
As a result of the First Sino-Japanese War, the Treaty of Shimonoseki granted Japan full sovereignty of Taiwan. Chinese cession of the Taiwanese Prefecture would facilitate the island's introduction to constitutional regimes: Japan had promulgated the Meiji Constitution six years prior. Thereafter, Japanese colonization stoked fierce debates surrounding the applicability of the Meiji Constitution towards colonial governments. Although the Meiji oligarchy declared that their constitution would not be applied to colonial possessions, Taiwanese people asserted that their naturalization as Japanese citizens guaranteed rights enumerated in the Meiji Constitution.[10] These legal debates culminated in granting Taiwan special legal status—Taiwan nominally became governed by constitutional rule.[11] However, constitutional rights were continuously violated by the Japanese military and state police. Representative institutions were not constitutionally installed. Likewise, Emperor Meiji granted the majority of executive and legislative powers to the Governor-General of Taiwan, an appointed military leader.[12]
The 1920s saw the rise of indigenous political movements as Taiwanese activists sought local autonomy and greater political freedoms. From 1921 to 1934, political activists attempted to petition the Imperial Japanese government to establish Taiwanese parliamentary assembly, which was met with little success. Conversely, the formation of the Taiwan Local Autonomy Alliance (臺灣地方自治聯盟 [zh]) in 1930 eventually contributed the limited city and township council elections in 1935.[13] Caving to these political movements, the Japanese colonial government established councils to integrate public opinion with the state. Half of the council members were to be directly elected by voters while the remaining half of council members were to be appointed by the government.[14] November 22, 1935, marked the landmark day where Taiwan's autonomous regional bodies held elections. Only adult males of higher socio-economic status were eligible to participate.[15]
The Meiji Constitution would not be Taiwan's last constitutional imposition: Taiwan would face another constitutional crisis when China's KMT government fled to Taiwan during the Chinese Civil War. According to Taiwanese legal scholar Yeh Jiunn-rong, these constitutions would impart a lasting legacy on Taiwan's constitutionalism: they inspired constitutional indigenization with their disparate frameworks, serving as a foundation for Taiwan's eventual constitutional identity.[16] Even today, remnants of Japanese colonialism exist within Taiwan's political systems. Up until 2005, Taiwan retained its single non-transferable voting (SNTV) system, a testament to the Meiji Constitution. Originating in Japan, the SNTV system grants voters one vote in multi-member districts. Unlike single transferable voting (STV), votes are non-transferable. Thus, surplus votes from one candidate cannot be transferred to other candidates. This electoral system lasted in Japan until 1994, yet persists in a limited form in Taiwan.[17]
Early attempts of Chinese constitution
The
The Kuomintang under
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The original Constitutional Drafting Committee of the newly foundedRepublic of China, photographed on the steps of the Temple of Heaven in Beijing, where the draft was completed in 1913.
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Drafting Committee members of the 1913 constitution draft
Drafting process
Part of a series on |
Three Principles of the People |
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The constitution was first drafted by the Kuomintang (KMT) as part of its third stage of national development (i.e., representative democracy), it established a centralized republic with five branches of government (五權分立). The constitution traces its origins to the end of the Second Sino-Japanese War. The impending outbreak of the Chinese Civil War pressured Chiang Kai-shek into enacting a democratic Constitution that would end KMT one-party rule. The Communists sought a coalition of one-third Nationalists, one-third Communists, and one-third other parties, to form a government that would draft the new Constitution. However, while rejecting this idea, the KMT and the CCP jointly held a convention at which both parties presented views. Amidst heated debate, many of the demands from the Communist Party were met, including the popular election of the Legislative Yuan. Together, these drafts are called the Constitutional Draft of the Political Convention (政協憲草). Professor John Ching Hsiung Wu, Vice-chairman of the Constitution Drafting Commission, was the principal author of the text.[19]
The Constitution, with minor revisions from the latest draft, was adopted by the National Constituent Assembly session on 25 December 1946, in Nanjing, promulgated by the National Government on 1 January 1947, and the fifth and current Chinese constitution officially went into effect on 25 December 1947. The Constitution was seen as the third and final stage of Kuomintang reconstruction of China. The Communists, though they attended the convention, and participated in drafting the constitution, boycotted the National Assembly and declared after the ratification that not only would they not recognize the ROC constitution, but all bills passed by the Nationalist administration would be disregarded as well. However, due to their showing in the election (approx. 800 out of 3045 seats,) their boycott did not prevent the Assembly from reaching quorum and thus electing Chiang Kai-shek and Li Zongren as president and vice president respectively. Zhou Enlai challenged the legitimacy of the National Assembly in 1947 by asserting that the KMT hand-picked its members 10 years earlier, and thus the Assembly could not be the legal representatives of the Chinese people.
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Political Consultative Conference in Chongqing, latest draft of the constitution was discussed by different political parties including Kuomintang and Chinese Communist Party.
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Nationalist Government, turned the draft approved by the Political Consultative Conference to Hu Shih, rotating chairman of the National Constituent Assembly.
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Nationalist Government.
Content
Three Principles of the People
In Article 1, the Republic of China is founded upon the Three Principles of the People (Chinese: 三民主義; pinyin: Sān Mín Zhǔyì), Minzu (民族), Minquan (民權), and Minsheng (民生), roughly defined as nationalism, democracy, and the livelihood of the people.[20] It establishes China as a "democratic republic of the People, by the people, and for the people." Article 2 affirms that national sovereignty is derived from the citizenry. According to Article 3, people of ROC nationality are citizens of the Republic of China. Finally, Article 5 guarantees equality among the nations ethnic groups.
Civil and political rights of people
The basic civil rights and duties of the people are specified in Chapter 2 of the Constitution. Chapter 12 specifies four political rights of the people: election of public officials, recall of public officials, legislative initiative, and referendum.
Separation of Five Powers (Yuan)
Unlike the typical division of governmental branches, the ROC constitution establishes a five-power, semi-parliamentary mode of constitutional governance. The five branches of government or Yuan (院) include: the Executive Yuan (行政院), the Legislative Yuan (立法院), the Judicial Yuan (司法院), the Examination Yuan (考試院), and the Control Yuan (監察院). The separation of five powers is predicated on revolutionary Sun Yat-sen's political theory. In 1906, Sun Yat-sen proposed the five-power system for China, adding the Examination Yuan and the Control Yuan to improve governmental efficiency and preclude corruption. Under this system, the Examination Yuan administers the selection of bureaucratic candidates whereas the Control Yuan monitors governmental integrity. Chapters 5-9 of the Constitution stipulates the authorities of the five Yuan. Should constitutional disputes arise between the Yuan, Article 44 authorizes the President to intervene with mediation sessions. This power, however, can be checked by the Yuan, who retain the ability to reject presidential calls for mediation.[21]
Racial groups in frontier regions
The ideology of the
Divisions of State Authority
The National Assembly
Based on Sun Yat-sen's political theory, the ROC Constitution distinguishes political powers from governing powers, creating another dimension for checks and balances. The Constitution introduced a powerful authoritative legislative body—the National Assembly (Chinese: 國民大會; pinyin: Guómín Dàhuì), which exercised political powers derived from the people (Article 25).[22] Thus, the National Assembly served to check national institutions with governing powers: the Presidency and the Five Yuan. Members of the National Assembly were directly elected by the people for six-year terms in open elections (Article 28). Under Article 27, the National Assembly had the right to amend the Constitution, exercise initiatives and referendums on the behalf of citizens, and elect or recall the President and the Vice President. Along with the Legislative Yuan and Control Yuan, the National Assembly featured parliamentary functions, sparking confusion around which institution served as the nation's parliament. The Legislative Yuan, National Assembly, and Control Yuan were all citizen-elected bodies; similarly, the National Assembly and Control Yuan exercised constitutional powers similar to powers granted to the legislative branch of Western constitutional governments.[23] In 1957, the Constitutional Court ruled that the National Assembly, Legislative Yuan, and Control Yuan were all "equivalent to the parliaments of democratic nations", creating a tripartite parliamentary system.[24] Constitutional reforms of the 1990s later sought to condense the powers and functions of the three parliaments into one body. After gradually transferring powers to the Legislative Yuan, the National Assembly abolished itself in 2005.[25]
The Presidency
The
The Executive Yuan
The
The
: Nèigé), is composed of a Premier, a Vice Premier, a certain number of Ministers and Chairmen of Commissions, and a certain number of Ministers without Portfolio (MWPs). Under Article 56, these cabinet members are appointed by the President upon the recommendation of the Premier. The Cabinet serves as the primary policy-making body of the executive branch, convening over administrative matters in weekly Cabinet meetings. Article 58 authorizes the Cabinet to assess statutory or budgetary bills concerning martial law or amnesty, declaration of war, conclusion of peace or treaties, and other affairs; the Cabinet subsequently submit bills to the Legislative Yuan. The Cabinet conducts decision-making through a single majority vote, which may be vetoed by the Premier. Additionally, the Cabinet presides over "matters that are of common concern to the various Ministries and Commissions."The Legislative Yuan
The Legislative Yuan (Chinese: 立法院; pinyin: Lìfǎyuàn) is the unicameral legislature of the ROC government and is the "highest legislative organ of the State."[30] The Legislative Yuan is composed of 113 legislators, who are directly elected by voters through a parallel voting system for 4-year terms. Like parliaments in other countries, the Legislative Yuan passes legislation, which is later sent to the President for signing. The Legislative Yuan is led by a President and Vice President, who are elected by all members of the Yuan. The President of the Legislative Yuan then presides over Yuan sittings, periodic meetings of the Yuan.
According to Chapter IV, the Executive Yuan is accountable to the Legislative Yuan. Article 63 empowers the Legislative Yuan to approve statutory or budgetary bills or bills sent by the Executive Yuan. Under Article 57, should the Legislative Yuan not concur with major policies of the Executive Yuan, "it may, by resolution, request the Executive Yuan to alter such a policy." Then, the Executive Yuan must respond to this resolution and can request alterations to the bill. The Executive Yuan may also request the Legislative Yuan reconsider its resolution after gaining approval from the President of the Republic. If two-thirds of the Legislative Yuan uphold the original resolution after reconsideration, the Premier shall abide the resolution or resign from office.
Local governments: Provinces and Counties
In Chapter XI of the Constitution, the country consists of two types of levels of local government: Provinces (first level, Section I) and Counties (second-level, Section II).
A province is the first-level divisions of the country. It consists of 35 provinces, 1 special administrative region, 2 regions, 18 special municipalities, 14 leagues, and 4 special banners. According to Article 113, each provincial-level governments shall have a provincial council and governor with its members of the provincial council directly elected by the people of the province. Article 118 describes the self-government of municipalities under the direct jurisdiction of the Executive Yuan. Articles 119 and 120 preserved the autonomy of Outer Mongolia and Tibet.
Counties (also spelled as hsien) consists of second-level divisions under provinces with 2,035 counties, 56 province-controlled cities, 34 bureaus and 7 management bureaus with special municipalities and leagues consisting of districts and 127 banners. Articles 124 and 126 describes each county-level governments require a county council and magistrate with each member and magistrate shall be elected by the people within the county. In Article 127 a magistrate are heads of the local county self-government and shall administer matters delegated to the county by the central or provincial government.
However, despite the major loss of its territory, even after democratization, the provinces began to be streamlined in 1998 with the counties and provincial cities governed directly under the Executive Yuan and the Tsai Ing-wen administration de facto suspended all provincial governments by 2018.
Suspension of the constitution and martial law
Implementation of this constitution made China, then with a population of 450 million, the most populous "paper
On 10 January 1947, Governor Chen Yi announced that the new ROC Constitution would not apply to Taiwan after it went into effect in mainland China on 25 December 1947, as Taiwan was still under military occupation and also that Taiwanese were politically naive and were not capable of self-governing.[31] Later that year, Chen Yi was dismissed and the Taiwan Provincial Government was established.
On 18 April 1948, the National Assembly added to the Constitution the "
From March 1947 until 1987, Taiwan was in a state of martial law. Although the constitution provided for regular democratic elections, these were not held in Taiwan until the 1990s. In 1954, the Judicial Yuan ruled that the delegates elected to the National Assembly and Legislative Yuan in 1947 would remain in office until new elections could be held in Mainland China which had come under the control of the Chinese Communist Party in 1949. This judicial ruling allowed the Kuomintang to rule unchallenged in Taiwan until the 1990s. In the 1970s, supplemental elections began to be held for the Legislative Yuan. Although these were for a limited number of seats, they did allow for the transition to a more open political system. In 1991, these members were ordered to resign by a subsequent Judicial Yuan ruling.
Democratisation
In the late 1980s, the Constitution faced the growing democratisation on Taiwan combined with the mortality of the delegates that were elected in 1947. Faced with these pressures, on 22 April 1991, the first National Assembly voted itself out of office, abolished the Temporary Provisions passed in 1948, and adopted major amendments (known as the "First Revision") permitting free elections.
On 27 May 1992, several other amendments were passed (known as the "Second Revision"), most notably that allowing the direct election of the
Passing an amendment to the ROC constitution now requires an unusually broad political consensus, which includes approval from three-fourths of the quorum of members of the Legislative Yuan. This quorum requires at least three-fourths of all members of the Legislature. After passing the Legislature, the amendments need ratification by at least fifty percent of all eligible voters of the ROC irrespective of voter turnout.
Because the ROC constitution is, at least nominally, the constitution of all China, the amendments avoided any specific reference to the Taiwan area and instead used the geographically neutral term "
Issues
Challenge of legitimacy
A number of criticisms have been leveled at the constitution by supporters of
In 1946,
While both symbolic and legal arguments have been used to discredit the application of the Constitution in Taiwan, the document gained more legitimacy among independence supporters throughout the late 1980s and early 1990s due to democratization and it is now accepted as the basic law of the ROC by all major parties, and considered the Constitution representing the sovereignty of Taiwan. However, there are proposals, particularly by supporters of
Referendums and constitutional reform
One recent controversy involving the constitution is the right to referendum which is mentioned in the Constitution. The constitution states that "The exercise of the rights of
In 2003, President Chen Shui-bian proposed holding a referendum in 2006 for implementing an entirely new constitution on 20 May 2008, to coincide with the inauguration of the 12th-term president of the ROC. Proponents of such a move, namely the
The proposal to implement an entirely new constitution met with strong opposition from the People's Republic of China and great unease from the United States, both of which feared the proposal to rewrite the constitution to be a veiled effort to achieve Taiwan independence, as it would sever a historic link to mainland China, and to circumvent Chen's original Four Noes and One Without pledge.[citation needed] In December 2003, the United States announced its opposition to any referendum that would tend to move Taiwan toward formal "independence", a statement that was widely seen as being directed at Chen's constitutional proposals.[citation needed]
In response, the Pan-Blue Coalition attempted to argue that a new constitution and constitutional referendums were unnecessary and that the inefficiencies in the ROC Constitution could be approved through the normal legislative process.[citation needed]
In his May 20, 2004, inaugural address, Chen called for a "Constitutional Reform Committee" to be formed by "members of the ruling party and the opposition parties, as well as legal experts, academic scholars and representatives from all fields and spanning all social classes" to decide on the proper reforms. He promised that the new Constitution would not change the issue of sovereignty and territory. This proposal went nowhere due to lack of cooperation from the opposition Pan-Blue.[citation needed]
Former President Ma Ying-jeou stated that constitutional reform was not a priority for his government.[35]
See also
- Qinding Xianfa Dagang
- Provisional Constitution of the Republic of China
- Additional Articles of the Constitution of the Republic of China
- Constitution of the People's Republic of China
- History of the Republic of China
- Politics of the Republic of China
- Kuomintang
- Democratic Progressive Party
- History of Taiwan
- Referendums in Taiwan
References
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- ^ Chang, Yun-ping (2004-07-02). "Lee launches constitution campaign". Taipei Times. Archived from the original on 2020-08-07. Retrieved 2008-12-10.
- ^ Ko, Shu-ling (2007-03-19). "Group pushes new constitution". Taipei Times. Archived from the original on 2020-08-07. Retrieved 2008-12-10.
- ^ Wu, Ming-chi (2003-10-28). "US, EU apt constitutional models". Taipei Times. Archived from the original on 2020-08-07. Retrieved 2008-12-10.
- ^ Wu, Sofia (2004-04-22). "New Constitution plan not independence timetable: Presidential Office". Global Security. CNA. Archived from the original on 2020-08-07. Retrieved 2008-12-10.
- ^ Chang, Yun-ping (2003-11-21). "DPP, KMT agree to debate between Chen and Lien". Taipei Times. Archived from the original on 2020-08-07. Retrieved 2008-12-10.
- ^ "Introduction(3)". Office of the President, Republic of China (Taiwan). Seventh revision. Archived from the original on 2020-08-07. Retrieved 2015-02-26.
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- ^ Hwang, Jau-Yuan; Chang, Wen-Chen; Liao, Fort Fu-Te (2003). "Development of Constitutional Law and Human Rights in Taiwan Facing the New Century". Institute of Developing Economies. 24: 21–80.
- ^ "Taiwan in Time: The right to vote under two regimes - Taipei Times". www.taipeitimes.com. 2021-10-10. Archived from the original on 2022-10-07. Retrieved 2021-10-25.
- ^ Wang, Yeh-Lih (1996). "The Political Consequences of the Electoral System: Single Nontransferable Voting in Taiwan" (PDF). 政治學系. 32: 85–104. Archived (PDF) from the original on 2022-02-20. Retrieved 2021-10-25.
- ^ "Private museum celebrating activist Lin Hsien-tang opens in Taichung - Taipei Times". www.taipeitimes.com. 2019-05-26. Archived from the original on 2022-10-08. Retrieved 2021-10-25.
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- ^ {{{first}}} {{{last}}}, Dr. Wu's Constitution, 132 Harvard Law Review 2300 (2019).
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- ^ "Constitution of the Republic of China (Taiwan) - Chapter - Laws & Regulations Database of The Republic of China" Archived 2021-10-20 at the Wayback Machine. law.moj.gov.tw. Retrieved 2021-10-17.
- ^ "Constitution of the Republic of China (Taiwan) - Chapter - Laws & Regulations Database of The Republic of China" Archived 2021-10-20 at the Wayback Machine. law.moj.gov.tw. Retrieved 2021-10-17.
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- ^ "Justices of the Constitutional Court, Judicial Yuan-Interpretations" Archived 2021-10-20 at the Wayback Machine. www2.judicial.gov.tw. Retrieved 2021-10-17.
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- ^ "Constitution of the Republic of China (Taiwan) - Chapter - Laws & Regulations Database of The Republic of China Archived 2021-10-20 at the Wayback Machine". law.moj.gov.tw. Retrieved 2021-10-17.
- ^ "Introduction". english.president.gov.tw. Archived from the original on 2021-10-23. Retrieved 2021-10-25.
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- ^ "Constitution of the Republic of China (Taiwan) - Chapter - Laws & Regulations Database of The Republic of China". law.moj.gov.tw. Archived from the original on 2021-10-25. Retrieved 2021-10-25.
- ^ "Constitution of the Republic of China (Taiwan) - Chapter - Laws & Regulations Database of The Republic of China" Archived 2021-10-20 at the Wayback Machine. law.moj.gov.tw. Retrieved 2021-10-18.
- ^ Kerr, George H. (1965) Formosa Betrayed, Boston Houghton Mifflin: p240
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- ^ "Taiwan passes watered-down referendum bill". People's Daily. 2003-11-28. Archived from the original on 2008-07-08. Retrieved 2008-11-12.
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- ^ Mo, Yan-chih (2006-05-01). "Ma says constitutional reform not the answer". Taipei Times. Archived from the original on 2013-10-12. Retrieved 2013-03-20.
External links
- "Main Text of the Constitution of the Republic of China (Taiwan)". Office of the President, Republic of China (Taiwan). Archived from the original on 2020-10-23. Retrieved 2020-09-17. also available at the Laws and Regulations Database, Ministry of Justice
- Hsueh, Hua-yuen (2001-12-24). "Constitution Day and Constitutional Government". Archived from the original on 2011-07-18. Retrieved 2020-09-17.