taiwan's constitutional reform: domestic inspiration and external

Taiwan’s Constitutional Reform:Domestic Inspiration and ExternalConstraints

NO. 125 NOVEMBER 2004

A S I A P R O G R A M S P E C I A L R E P O R T

Since Taiwan’s political democratizationstarting in 1986, the Constitution ofthe Republic of China (ROC) has

experienced six rounds of revision. In recentyears, there has been a growing sentiment inTaiwan to create a new constitution through anational referendum. Many people in Chinaand the United States are concerned that sucha move might be a watershed leading toTaiwan’s de jure independence from mainlandChina, thus bringing the two sides of theTaiwan Strait into a disastrous war.

What is the rationale behind Taipei’s pursuitof a new constitution? What are the differentcalculations of Taiwan’s politicians and ordi-nary people on such a controversial issue?What will be the advantages and disadvantagesif Taiwan seeks to redefine its sovereignty andterritory in the new constitution? What areBeijing’s possible responses to Taiwan’s consti-tutional reform, and the implications for the

United States? Does the United States have arole to play in influencing Taiwan’s constitu-tional reform, or the methods by which suchreform is carried out? The following threeessays explore these and related issues.

The first essay, by Minister Jiunn-rong Yehof the Research, Development and EvaluationCommission, the Executive Yuan, Taiwan,argues that Taiwan needs a new constitutionbecause the previous six rounds of constitu-tional revision were undertaken to solveimmediate political problems and eventuallycreated more institutional deadlock and politi-cal instabilities. According to Yeh, the first callfor a new constitution in Taiwan was made inearly 1990. Because the then ruling party(Kuomintang, or KMT) feared losing its polit-ical dominance, these demands went nowhere.Incremental constitution revision became thewatchword for the democratization process inthe following decade.

According to Yeh, since Taiwan has beentransformed into a full-fledged democracy, it istime for political elites and ordinary citizens to

INSIDE

JIUNN-RONG YEH

Hope or Nope: TheSecond Call for a NewConstitution in Taiwan

page 4

JACQUES DELISLE

Reforming/Replacing theROC Constitution:Implications for Taiwan’sState (-Like) Status andU.S. Policy

page 12

ALAN M. WACHMAN

Constitutional Diplomacy:Taipei’s Pen, Beijing’sSword

page 19

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,Development and Evaluation Commission, the Executive Yuan,Taiwan, argues that a new con-stitution could enhance Taiwan’s democratic and effective governance, and help to develop aTaiwanese national identity. Professor Jacques deLisle of the University of Pennsylvania LawSchool 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 andDiplomacy maintains that mutual accommodation between China and Taiwan is possiblethrough dialogue.While the three essays all recognize the inevitability of some sort of constitu-tional reform, they vary on its final direction as well as possible implications for Washington-Taipei-Beijing relations.

IntroductionGang Lin

ASIA PROGRAM

Gang Lin is program associate at the Woodrow Wilson Center’s Asia Program.

engage in lengthy and comprehensive delibera-tions—instead of short-term political bargainsamong political parties—for a new constitution.Thecurrent constitution, with its many articles addedover the years, is so unreadable that ordinary people(even law students and sometimes lawyers) can havetrouble comprehending fully the current constitu-tional arrangement.Yeh contends that the differencebetween constitution-amending and constitution-making is actually very slight. An updated list ofhuman rights and more effective mechanisms forhuman rights protection should be incorporatedinto the new constitution. He concludes that a newconstitution would enhance Taiwan’s effective gov-ernance, promote deliberative democracy, and helpto develop a new Taiwanese national identity, eventhough it might provoke Beijing’s opposition oreven hostility.

In the second essay presented here, ProfessorJacques deLisle contends that the principal argu-ments offered by Taipei for why Taiwan needs toundertake constitutional reform involve questions ofTaiwan’s status and cross-Strait relations.Constitutional revision that reconfirms Taiwan’sdemocracy and protection of human rights wouldhighlight Taiwan’s independent status in the con-temporary world. Substantially revising the constitu-tion will inevitably make the document more clear-ly Taiwanese, and more deracinated from its main-land origins and Pan-China claim.

DeLisle points out that differences between mak-ing a new constitution and revising the current one

are legally and politically significant, as a new consti-tution is often associated with a new state.Moreover, to change or replace the constitutionthrough a referendum or other direct popular actionwould open the door wider to more radical substan-tive changes to the constitution, including redefin-ing Taiwan’s territory in such a way as to renounceTaiwan’s claim to the mainland.The idea of submit-ting a revised constitution to a 2006 referendum wasa staple of President Chen Shui-bian’s platform—although the notion was absent from his carefullyvetted inauguration speech. The controversy overTaiwan’s constitutional reforms poses new chal-lenges for U.S. policy toward China and Taiwan, cre-ating a dilemma between U.S. pursuit of its “realist”national interests and support for democratic values.

The third essay, by Professor Alan M.Wachmanof the Fletcher School of Law and Diplomacy,maintains that Beijing perceives Taipei’s constitu-tional “re-engineering” as provocative. Beijingbelieves President Chen Shui-bian has a “timetablefor independence,” and that the introduction of anew constitution represents one giant step towardthat objective. From this point of view, Beijing hasdone nothing to signal its population that accom-modating Taiwan’s determination to remainautonomous may better serve the national interestand enhance the possibility of China’s eventual uni-fication. The entire policy and propaganda appara-tus of the PRC is, on this matter, now locked into aform of “groupthink with Chinese characteristics.”

According to Wachman, mutual accommodationbetween the two sides of the Taiwan Strait is stillpossible if Taiwan can persuade Beijing that it hasnot foreclosed some types of association withChina. The United States should caution Taiwanthat it cannot be truly independent so long as it isdependent on the U.S. military umbrella for sur-vival. It may be time for the United States to con-template how a reduction in arms sales to Taiwancan serve as an incentive to Beijing to acceptTaiwan’s autonomous status.

Senior Associate Bonnie S. Glaser of the Centerfor Strategic and International Studies offered com-mentary on these three essays when they were firstpresented at a July 21, 2004, seminar sponsored bythe Woodrow Wilson Center’s Asia Program. Sheargued that Taiwan’s inspiration for a new constitu-tion is greatly constrained by Beijing’s opposition on

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ASIA PROGRAM SPECIAL REPORT

THE ASIA PROGRAM

The Wilson Center’s Asia Program is dedicated to the propositionthat only those with a sound scholarly grounding can begin tounderstand contemporary events. One of the Center’s oldestregional programs, the Asia Program seeks to bring historical andcultural sensitivity to the discussion of Asia in the nation’s capital.In seminars, workshops, briefings, and conferences, prominentscholars of Asia interact with one another and with policy practi-tioners to further understanding of the peoples, traditions, andbehaviors of the world’s most populous continent.

Asia Program Staff:Robert M. Hathaway, DirectorGang Lin, Program AssociateAmy McCreedy, Program AssociateWilson Lee, Program Assistant

this sensitive issue. After the collapse of the SovietUnion, most Eastern European nations weredemocratized and wrote new constitutions. In con-trast,Taiwan still faces “a 800-pound gorilla” whichhas drawn clear red lines against Taiwanese inde-pendence and constitution-making. It is because ofU.S. intervention that Taipei has not redefined itsterritory as limited to the island. However, oneshould not rule out the possibility, Glaser cautioned,that President Chen Shui-bian may eventuallyresort to a referendum for constitution-making.Toprevent a war between China and Taiwan, the twosides should resort to negotiation and confidencebuilding, starting with small moves, such as cooper-ation on science and technology or on anti-pollu-tion measures in the Taiwan Strait.

This Special Report discusses both domesticinspirations for and external constraints on Taiwan’sconstitutional reform.While the three essays all rec-ognize the inevitability of some sort of change inthe constitution, they vary on its final direction as

well as possible implications for Washington-Taipei-Beijing relations. In other words, to what degreeTaiwan’s constitutional reform is—or should be—constrained by external factors remains debatable.For example, the Taiwanese Yeh insists that Taiwan’sconstitutional reform has nothing to do with a dec-laration of independence, while deLisle emphasizesBeijing’s possible reaction against a new round ofconstitutional reform in Taiwan. Many Americanreaders will find it easy to disagree with one per-spective or another in these pages, as will readersfrom the PRC and Taiwan. However, many believethat Beijing and Taipei should resort to negotiationand confidence building amidst the growing tensionacross the Taiwan Strait, and that the United Statesshould encourage cross-Strait dialogue.We hope thisSpecial Report will help policymakers and opinionleaders develop an informed understanding of thecomplexity of Taiwan’s constitutional reform, andseek out possible solutions to prevent a war acrossthe Taiwan Strait in the years to come.

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TAIWAN’S CONSTITUTIONAL REFORM: DOMESTIC INSPIRATION AND EXTERNAL CONSTRAINTS

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BACKGROUND FOR REFORM

A call for a new constitution for Taiwan made byPresident Chen Shui-bian and the rulingDemocratic Progressive Party (DPP) during 2003has fueled serious debates both on the island and inthe world. The ruling party contends that the cur-rent constitution—after six rounds of revision dur-ing the 1990s—has not been able to empower gov-ernment agencies to deliver 1) good and effectivegovernance, 2) democracy and the rule of law, 3)human rights protection, and 4) long-term stabilityand prosperity. Having regarded Chen’s call for anew constitution as merely a campaign strategy, theopposition camp nonetheless rushed to propose acompeting agenda—constitutional revision. Con-sequently, “constitution making” (writing a newconstitution) and “constitution amending” (attach-ing amendments to the current constitution)became the different mottos for the two majorpolitical coalitions, mirroring their ideologicaldivide on national identity.

In fact, the battle between constitution makingand constitution amending is anything but new.Thefirst call for a new constitution was made in early1990. The questions contemplated then included:Would serious implementation of the Constitutionof the Republic of China (ROC)—primarilydesigned in the late 1940s for governing theChinese mainland—suffice to bring about democ-racy in Taiwan? Was it necessary to revise the con-stitution to adapt to the changing circumstances inTaiwan? If so, what scale of revision, large or small,was needed? If a large scale of revision was required,why did not Taiwan simply make a new constitu-tion? In the eyes of many radical reformers, a newconstitution was imperative to promote and sustainTaiwan’s democracy in the long run.

The grand debate ended with a political com-promise to undertake a gradual constitutionalreform.The then ruling party (KMT) feared losingits political dominance.A constitutional reform on a

small scale that could both meet the demand forpolitical openings and preserve regime continuitywas in the best interest of the KMT.The movementof making a new constitution was thus losingmomentum. Incremental constitutional revisionbecame the watchword for the democratizationprocess in the following decade. The six rounds ofconstitutional reform were undertaken to solveimmediate political problems rather than makingcomprehensive arrangements that could furtherfacilitate democratic values and the rule of law.Shortsighted reforms exacerbated constitutionalvagueness and institutional inconsistency, which cre-ated even more political deadlock and instabilities.

Notwithstanding such piecemeal constitutionalreforms,Taiwan eventually transformed itself into afull-fledged democracy. Whereas the constitutionstill claims that ROC sovereignty extends to theChinese mainland, the six rounds of revision havemade major political offices open to fair and com-petitive elections, and enfranchised fully theTaiwanese people. In 2000, the then opposing DPPsurprisingly won the presidential election. An

Hope or Nope: The Second Call for a NewConstitution in Taiwan

JIUNN-RONG YEH

Jiunn-rong Yeh is minister of the Research, Development and Evaluation Commission, the Executive Yuan,Taiwan.

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unprecedented, peaceful transfer of governmentalpower was witnessed in Taiwan. In the 2001 legisla-tive elections, the DPP performed very well andturned into the biggest—while not yet the majori-ty—party in the Legislative Yuan. In the 2004 pres-idential election, the DPP sustained its governingposition, and the KMT and its allies remained oppo-sition parties.

Seen in this way, the ROC Constitution with allits piecemeal revisions—other flaws or imperfec-tions put aside for the moment—may have notimpeded the process of democratization. It mighteven suffice to say that the constitution has nurtureda healthy atmosphere for political competition dur-ing the transition. If so, would it be necessary nowfor Taiwan to proceed with another round of con-stitutional revision or even to write a new constitu-tion? Why does Taiwan need a new constitutionsince the island has already successfully transformeditself into a democracy?

REASONS FOR THE SECOND CALL

To answer these questions sufficiently, we must firstknow the functions of a new constitution—what itmay deliver to sustain young democracies that facedomestic and global challenges. While Taiwanmissed the first call for a new constitution in theearly 1990s, many new democracies seized theunusual moment and wrote new constitutions.1

Derived from theory as well as practice, a new con-stitution serves a young democracy in at least threeways: managerial efficiency, democratic deliberation,and identity building.2

I will first explain these functions, and thenexamine whether the current ROC constitution isstill short of these functions and whether Taiwanreally needs a new constitution.

Managerial EfficiencyThe managerial function that a new constitutionmay provide seems obvious. A well-functioningdemocracy requires a clearly defined institutionalstructure, which empowers government agencies todeliver the public good, and constrains them fromabusing power—thus allowing the private sphere toflourish.With political and economic transitions intandem, it is even more important for transitionalsocieties anxious about global competition to estab-

lish a sophisticated and impartial judicial system toprotect human rights and business activities.3

To guarantee effective and good governance, con-stitutional clarity in both procedure and substance isimportant. Unfortunately, many studies have shownthat political compromise and incremental reform,which were common in the third-wave democrati-zation process, are likely to create constitutionalvagueness and institutional inconsistency prone topolitical deadlock and instability.4 Not until consti-tutional clarity is obtained—either through constitu-tional re-engineering or strong intervention of acourt—could constitutional stability be maintained.

As President Chen pointed out in his 2004 inau-gural speech, the ROC Constitution has seriousproblems in managing state affairs.5 The manageri-al flaws of the existing constitutional regime arethree-fold: fragmentation of the constitution, dead-lock-prone institutional arrangements, and stagna-tion in revising the constitution.

Fragmentation of the constitution. As mentioned ear-lier, the ROC Constitution was revised incremen-tally during the last decade.Worse yet, the six roundsof revision took the form of amendments—a sepa-rate document attached to the constitution contain-ing 10 new articles, which were composed in such adense and complex way that they altered or sus-pended about 60 provisions—more than one-thirdof the constitution.

Nearly all of the major constitutional institutionsand their powers and functions were altered oneway or another. These changes include 1) powersand the direct election of the presidency, 2) powersand electoral redistricting of the Legislative Yuan, 3)the appointment of the premiership (the head of theExecutive Yuan) and checks and balances betweenthe Legislative Yuan, the Executive Yuan and thepresident, 4) the redefined role of the Control Yuan(from a representative organ to a ombudsman-likeinstitution), 5) jurisdiction of the Council of GrandJustices and the appointment and tenure of GrandJustices, 6) functions of the Examination Yuan, 7)suspension of provincial government and redistribu-tion of powers between national and local govern-ments, and 8) an enumerated list of policies, such aspursuit of sustainable development and protectionsof women, farmers, and aboriginals.

In other words, the scale of the past revisions wasfar from small, leaving only the chapter of funda-

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mental rights unaffected. Additional articles wouldhave worked well (as the amendments to the U.S.constitution have done), had the scale of revisionbeen small and few provisions been altered or sus-pended. But unfortunately, such was not the case.Rather, complicated by the additional articles, con-stitutional provisions have become fragmented.Neither the integrity of the ROC Constitution thatthe KMT initially sought to preserve nor the con-stitutional clarity remains.The constitution, with itsmany articles added over the years, is so unreadablethat ordinary people (even law students and some-times lawyers) can have trouble comprehendingfully the current constitutional arrangement. Thisflaw, from a standard point of constitutional law, jus-tifies a new constitution. Other democracies havedone the same thing for the same reason—why notTaiwan?

Deadlock-prone institutional arrangements. The storyof Taiwan’s six rounds of constitutional revisionexemplifies the problem of shortsighted reform. Asa short-run political crisis was dissolved, long-terminstitutional difficulties emerged.

The first two rounds of revision addressed thepolitical crisis caused by the aging of representativesin the National Assembly, the Legislative Yuan andthe Control Yuan.The reform aimed to comprehen-sively reelect these positions. But once these threebodies became democratic, more intricate difficul-ties concerning checks and balances among thembegan to surface. Unfortunately, the additional arti-cles remained unhelpful on these issues for manyyears.The battle between the National Assembly andthe Legislative Yuan did not end until the sixthround of constitutional revision in 2000.The powerdemarcation between the Control Yuan and theLegislative Yuan, especially regarding their competi-tion for overseeing the administration, remains anunresolved issue even today.

The third round of constitutional revision in1994 tackled straightforwardly the issue of directpresidential elections, but again neglected moreimportant institutional arrangements associatedinevitably with an increasingly powerful presidency.It was anticipated that the fourth round of constitu-tional revision in 1997 would address in detail thetriangular relationship among the president, the pre-mier, and the Legislative Yuan. Unfortunately, how-ever, without a firm consensus on a governmentalsystem, one minor alteration in the triangular rela-tionship actually created more problems than itsolved.6

Today,Taiwan’s president is directly elected by thepeople and enjoys full power to appoint the premier,thus controlling—indirectly or directly—theadministration. Within the current governmentstructure, however, it is still the premier who shouldbe responsible to the Legislative Yuan, and there areno effective checks and balances between theLegislative Yuan and the president. Although theLegislative Yuan can render a vote of no confidenceto the premier who is appointed by the president,the president, in response, can dissolve theLegislative Yuan.The latter, in fear of dissolution andthe cost of re-election, is therefore unlikely to initi-ate any vote of no confidence, thus losing almostindefinitely its effective check on the president.Some argue that the revised institutional arrange-ment resembles the French semi-presidential system,but it is clear that the French system employsstronger checks and balances to constrain presiden-tial powers.

This ill-designed institutional arrangement hasdestabilized Taiwanese politics since 2000, when theKMT-led political opposition occupied majorityseats in the Legislative Yuan, but found no effectiveway to check presidential powers.The constitution-al crisis resulting from the suspension of the fourthnuclear power plant by the Chen administration in2000 and 2001 was attributable to the same dead-lock, to which the No. 520 Interpretation renderedby the Council of Grand Justice provided no intel-ligible solution.

The sixth round of constitutional revision in2000 was again crisis-driven.The Judicial Yuan ruledin the No. 499 Interpretation that the earlier consti-tutional revision that extended the terms of theLegislative Yuan and the National Assembly was

The constitution, with its many articlesadded over the years, is so unreadable thatordinary people (even law students andsometimes lawyers) can have troublecomprehending fully the current constitu-tional arrangement.

unconstitutional. Without much time for contem-plating constitutional consequences, the NationalAssembly rushed to suspend itself and concede itspowers to the Legislative Yuan. Notwithstandingsuch a revision, the Legislative Yuan is yet equippedwith sufficient powers to check the powerful presi-dency.

These institutional flaws certainly require a thor-ough constitutional rearrangement. Until then, theTaiwanese government will continue to experienceinstitutional difficulties in delivering the good andeffective governance so desired by a society facingglobal competition.

Stagnation of the amending process. As the 2000 revi-sion suspended the National Assembly that had the-oretically enjoyed supreme power in constitutionalrevision, the constitutional amendment process inTaiwan was changed accordingly. At present, thepower of amending the constitution is primarily inthe hands of the Legislative Yuan. When theLegislative Yuan proposes for constitutional amend-ment, three hundred ad hoc delegates to theNational Assembly are elected within three monthsand a convention is called to decide whether or notto approve the proposed amendment.The length ofthe convention is no more than a month, and thetenure of delegates expires as soon as the conventionis adjourned.

This rather complicated and difficult amendmentprocess was again (not surprisingly) a political com-promise. Both the KMT and the DPP agreed toreduce sharply the National Assembly’s functions,but the KMT insisted on preserving the name“National Assembly.” Without a thorough debate,the ruling party chose unwisely to preserve theNational Assembly, but suspend most of its originalpowers, creating new problems in the constitution.

Yet another round of revision is insufficient tosolve such problems as the above.The three hundredelected delegates to the ad hoc National Assemblygather only for a short time. Such an arrangementresembles a type of public referendum—which cer-tainly would surprise many who have opposed anyform of referendum for constitutional re-engineer-ing.

Democratic Deliberations The democratic function of a new constitution isrelated primarily to the process. Making a new con-

stitution with a broad base of consensus facilitatesthe ongoing democratic process. In the third-wavedemocratization process, an elite settlement throughnegotiation between incumbents and oppositionwas common. While elite negotiations might becrucial in speeding up the democratization processin the beginning, they cannot sufficiently sustaindemocracy in the long run.The final constitutionalcompromise must be grounded on political resolu-tions that are transparently and deliberatively dis-cussed in public forums, with highly mobilized sup-port throughout the country.

The constitution-making process of South Africaduring 1994 and 1996 exemplified such a greatprocess.While South Africa started democratizationwith an elite settlement during the 1992-1994roundtable talks, it continued the democraticprocess through enthusiastic and genuine publicdebates on promulgating a new constitution.Whenthe new constitution was adopted in 1996, SouthAfrica had completed not only democratic elec-tions, but also—more importantly—the building ofa deliberative democracy. In other words, the call fora new constitution entails a genuine democraticprocess, by which initial top-down political bargainsare transformed into bottom-up constitutionaldeliberations. Until that happens, the new values andprinciples developed during the transition period—even very good ones—will never be fully recog-nized and entrenched among the people.

Taiwan’s past political transition was short ofdemocratic deliberations. The six rounds of consti-tutional revision were largely negotiated pactsbetween major political parties. Hopefully, the sec-ond call for a new constitution will provide Taiwanwith a renewed chance to develop, in a more dem-ocratic way, the broadest possible consensus on insti-tutional arrangements and a set of values and prin-ciples. These values and principles, especially anupdated list of human rights and related mecha-

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The call for a new constitution entails agenuine democratic process, by which ini-tial top-down political bargains aretransformed into bottom-up constitution-al deliberations.

nisms, were largely ignored in past reforms, as polit-ical players merely focused on institutional arrange-ments pertaining their interests.

Identity BuildingThe identity-building function of constitution mak-ing can be observed from a broad perspective. Byway of constitution making, at least three kinds ofidentity may be formed: first, the identity of a newnation, i.e., national identity7; second, the identity ofa new constitutional regime, i.e., constitutionalidentity8; and finally, the identity of a new civic andconstitutional culture, i.e., civic or cultural identity.9

It is without doubt that making a new constitu-tion can help form a new national identity. A con-stitution, enacted by people living in a confined ter-ritory, defines their unique identity by enfranchisingthem while disenfranchising other peoples. Forinstance, as much as the U.S. constitution has sus-tained an American identity, the making of a newconstitution in the European Union since 2002 isproducing a new European identity. Forming anational identity, however, has never been the solepurpose of any constitution making. Other ways cancultivate a new national identity more effectively,such as language programs and ethnic policies.

A more important result of constitutional makingis “constitutional identity.” A new constitutionstands for a new common ground, upon which peo-ple who are often divided in transitional societiesmay be united. It also becomes a new symbol withwhich people can identify. By adopting a new con-stitution that meets the criteria of democracy, rule oflaw, human rights protection and constitutionalism,the new regime sends a strong signal to its own peo-ple that they have something of which to beproud.10 This function was vividly observed in theconstitution making of many Eastern Europeannations. By making a new constitution modeled onthe West, Eastern European nations found their wayto “Europe.”

A more subtle form of identity bestowed by theconstitution-making process is civic or culturalidentity.Through democratic deliberations empow-ering citizens to participate, a civil culture associat-ed with modern constitutionalism can be nurtured.The formation of civic identity, while not easy, ispivotal to the long-term sustainability of constitu-tional democracy.

Clearly, Taiwan has lacked these three kinds ofidentity. The KMT government brought the ROCConstitution to Taiwan in 1949.The Taiwanese peo-ple have never enjoyed the chance to make a newconstitution, by which their national identity, con-stitutional identity and civic identity could beformed.To a great degree, however, the processes ofdemocratization and constitutional reform since the1990s have helped form these kinds of identity. Asnumerous studies have shown, the process ofdemocratization in Taiwan was in tandem with, andto some extent fueled, the pursuit of national iden-tity.With an independent—and a more advanced—constitutional regime, the Taiwanese people feelquite different from the people in China or HongKong.The strengthening of national, constitutionaland civic identity in Taiwan must be distinguishedfrom the pursuit of independence.

PROSPECTS FOR THE SECOND CALL

As examined above, it is clear that previous roundsof constitutional reform have produced many seri-ous problems that require further constitutionalsolutions. For managerial, democratic and identityreasons, the making of a new constitution in Taiwanis imperative to solve constitutional hurdles left bypiecemeal reforms, and, perhaps even more impor-tantly, to equip the island with good and effectivegovernance, deliberative democracy, and a newidentity.

Facing an increasingly fragile domestic environ-ment and a competitive global market,Taiwan mustnot miss the second call for a new constitution.Theremaining issue is in what ways the initiative of anew constitution can be carried out. What newprospects will be seen this time? Building upon les-sons learned from past incremental reforms, I arguein this paper that constitutional reform shouldinvolve optimal timing, a deliberative process, and acomprehensive approach.

New Timing Timing is critical to the success of the renewed callfor a new constitution.As mentioned earlier, the firstcall for a new constitution came in an earlier stageof democratization. Under the circumstances, prior-ity had to be given to political solutions such asopening elections, rather than any careful design of

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institutional arrangement or constitutional valueand principles.

But the current situation is different. As a full-fledged democracy,Taiwan must reflect thoughtful-ly upon constitutional problems and tackle institu-tional details carefully. Other young democracieshave done the same thing. After having gonethrough the initial difficult years of transition,democracies such as South Africa, Poland, and evenThailand made new constitutions. As transitionalpolitics stabilized, political elites and ordinary citi-zens could engage in lengthy and serious delibera-tions rather than being consumed by short-termpolitical bargains.

When is the best time for a new constitution?President Chen mentioned several times that delib-eration of a new constitution would begin with hissecond term in 2004, to be completed in 2007, andthe new constitution would become effective inMay 2008 at the expiration of his second term.

I think the timing put forth by Chen is proper, asis the president’s role in constitution-making.Having been reelected, President Chen enjoys agreater degree of political legitimacy than before incalling for a new constitution. With no chance forcontinued tenure after 2008, he is removed fromexcessive political pressures and stands in a fairlyneutral position in directing the process of constitu-tional reform. Comparative constitution-making lit-eratures have taught us that one of the greatest dan-gers in constitution making is politicalization—theentrenchment of special interests in the document.As far as President Chen’s agenda for constitutionalreform is concerned, such danger would be avoidedin Taiwan.

Deliberative ProcessThe past rounds of constitutional reform in Taiwanwere characterized as elite settlements, as discussedearlier. Political solutions to the problems of democ-ratization were developed at the roundtables ofpolitical parties or in the meeting rooms of theNational Assembly, rather than in public forums ofcitizens and minority groups.To speak fairly, none ofthe constitutional revisions gained highly mobilizedsupport from citizens. This must not happen whenconstitution making is renewed.

In sharp contrast with elite settlements, citizen’sthorough deliberative participation is required in the

renewed process of constitution making. In summer2004, Secretary General Su Chen-Chang (on behalfof President Chen) traveled to talk with profession-al/interests groups, ethnic minorities, and citizenrepresentatives in exchange for their comments onconstitutional re-engineering. This was partly tokeep the DPP’s earlier promise of expanding citizenengagement in the course of constitution making.But such actions are not enough. More vigorousefforts must be made to bring public deliberations,such as citizen conferences, public debates, and edu-cational programs, into the process. In fact, we maylearn from other successful examples of constitutionmaking, just as South Africa and European countrieshave done.To facilitate broad-based citizen engage-ment, these countries created citizen participationprograms in the course of making their constitu-tions, employing traditional constitutional confer-ences as well as modern technologies such as web-sites, e-mail, and multi-media equipment.11 Thebroader the base of participation, the less interest-driven the final product would be.

Is a referendum required for the making of a newconstitution? For me, the answer is yes. Many newdemocracies have held such a referendum without aclear constitutional requirement to do so—why notTaiwan? With more popular and deliberative formsof democracy being emphasized today, public refer-enda are regarded as one of the most important con-stitutional mechanisms by which a broad baseddecision-making can be accomplished. Holding areferendum does not necessarily suggest any failureof the representative system. Besides, a referendum,successfully pulled off, can contribute significantlyto a strong and mature civic culture, thus helping tosustain democracy in the long run. More impor-tantly, as discussed above, the procedural require-ments of the current amendment process resemble aparticular kind of public referendum by involvingthree hundred elected delegates to the NationalAssembly. Either a genuine referendum or a processresembling a referendum is appropriate for Taiwan’sconstitution making.

Comprehensive ApproachAd hoc problem solving was the pattern of incre-mental constitutional revisions in Taiwan. However,this pattern produced as many, if not more, manage-rial difficulties in the long term as it solved.Worse

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yet, institutional details crowded out other items onthe agenda that were often more important—suchas expanding human rights, addressing past injus-tices, and finding a more balanced approach to eco-nomic and environmental development.

A comprehensive range of constitutional re-engi-neering must be considered this time. In addition toan updated list of human rights, other issues to beaddressed include the establishment of more effec-tive human rights protection mechanisms such as ahuman rights commission or ombudsman; finaldecisions on government and judicial systems (oneSupreme Court or separate high courts includingconstitutional court); the separation of powersbetween national and local governments; and final-ly, national policies such as the welfare state, sustain-able development, protection of aboriginal andother ethnic minorities, and related language andeducational policies.These are issues that have beendiscussed seriously in other constitutional assembliesof new democracies confronting competitive globalchallenges. There should be no exception toTaiwan’s constitutional agenda.

Regarding more controversial issues such as theredefinition of sovereignty and “governing territo-ry,” President Chen has made clear in his inauguralspeech that these issues are off his agenda at thistime. Chen’s position certainly releases tensionacross the Taiwan Strait and ameliorates the con-cerns of the international community. However, theTaiwanese people should have a chance to reflectthoroughly upon these issues. The deliberativeprocess is as important as the final decision.Europeans have taken decades to reflect—throughnumerous constitutional conferences, public debatesand referenda—on their decision to unify.The ulti-mate solution to the relationship between Taiwanand China should involve more—rather than less—open and deliberate constitutional discussions.

CONCLUSION: CHALLENGES AHEAD

Taiwan missed the first call to make a new constitu-tion in the early 1990s. Now a full-fledged democ-racy,Taiwan should seize a second chance for con-stitutional re-engineering.The past rounds of incre-mental reforms produced more serious problemsthan they solved. For the managerial, democratic

and identity reasons discussed above, the second callfor a new constitution is an opportunity for Taiwanto overcome constitutional hurdles and, perhapseven more importantly, to equip itself with goodand effective governance, deliberative democracyand a new identity.

Understandably, China has opposed Taiwan’sagenda for constitutional re-engineering. TheUnited States also has raised some concerns overpolitical harm that Taiwan’s constitutional makingmight cause to regional stability. Interestingly, in thecourse of Taiwan’s transition to democracy, not asingle constitutional reform failed to provokeChina’s opposition or even hostility. One majorexample was the decision on direct presidentialelections. But Taiwan would not have become a full-fledged democracy without these reforms. Besides,China has made or amended its constitution severaltimes since the 1980s. Taiwan’s constitutional re-engineering has nothing to do with the final deci-sion on cross-Strait relations, not to mention a dec-laration of independence. A carefully crafted newconstitution could enhance Taiwan’s internal stabili-ty, therefore facilitating regional cooperation.Should Taiwan succeed in grand constitutionalreform, it could set an example for emergingdemocracies in the region.

Many new democracies make new constitutionson their way toward constitutionalism. TheTaiwanese people, however, must exercise more pru-dence in designing procedures and making substan-tive changes. As stated earlier, as long as an ad hocNational Assembly is required to approve any con-stitutional revision—resembling a de facto nationalreferendum—the difference between constitutionamending and constitution making is but slight.Thus, the apparent tension between politicalalliances insisting on constitution amendment andthose insisting on a new constitution has no solidconstitutional ground. In fact, comparisons of con-stitution-making experiences shows that the rela-tionship between constitution amending and consti-tution making is relative and should not be exagger-ated.12 During this renewed chance for constitu-tional regeneration, political leaders in Taiwan mustabandon their ideological differences and concen-trate on crafting a new institutional framework forTaiwan’s long-term sustainability.

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ENDNOTES

1. For example, South Africa adopted a new con-stitution at the end of 1996, and Poland andThailand did the same thing in 1997.

2. Bruce Ackerman, The Future of LiberalRevolution (New Haven: Yale University Press,1992); Cass Sunstein, Designing Democracy: WhatConstitu-tions Do (New York: Oxford UniversityPress, 2001).

3. Aredn Lijphart and Carlos H. Waisman,“Institutional Design and Democratization,” inInstitutional Design in New Democracies: Eastern Europeand Latin America 6 (Boulder, Colo.:Westview Press,1996).

4. Juan Linz and Alfred Stepan, Problems ofDemocratic Transition and Consolidation: SouthernEurope, South America, and Post-Communist Europe(Baltimore, Maryland: Johns Hopkins UniversityPress, 1996); Wen-Chen Chang, Transition toDemocracy, Constitutionalism and Judicial Activism:Taiwan in Comparative Constitutional Perspective (JSDDissertation,Yale Law School, 2001).

5. See Chen Shui-bian, “Paving the Way for aSustainable Taiwan,” May 20, 2004, available athttp://www.president.gov.tw/php-bin/docset/showenews.php4?_sectopm=5&_rid=1684.

6. Jih-wen Lin, “Transition Through Transaction:Taiwan’s Constitutional Reforms in the Lee Tenghui

Era,” American Asian Review,Vol. 20 (2002), No.2, pp.123-155.

7. Christina Murray, “Constitutional Beginning:Making South Africa’s final Constitution,” Little RockLaw Review, Vol. 23 (2001), p. 809.

8. Michel Rosenfeld, “Constitution-Making,Identity Building, and Peaceful Transition toDemocracy:Theoretical Reflections Inspired by theSpanish Example,” Cardozo Law Review, Vol. 19(1998), p. 1891.

9. Bruce Ackerman, The Future of LiberalRevolution.

10. Upendra Baxi, “Universal Rights andCultural Pluralism: Constitutionalism as a Site ofState Formative Practices,” Cardozo Law Review Vol.21 (2000), p. 1183.

11. Vicki C. Jackson and Mark Tushnet,Comparative Constitutional Law (New York:Foundation Press, 1999).

12. For example, Hungary and South Koreaamended their Constitution to such a degree thatalmost resembled a new one. See Istvan Pogany,“Constitutional Reform in Central and EasternEurope: Hungary’s Transition to Democracy,”International and Comparative Law Quarterly, Vol. 42(1993), p.332; Kyong Whan Ahn,“The Influence ofAmerican Constitutionalism on South Korea,” LawJournal, Vol. 22 (1997), p. 71.

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NEW CONSTITUTION OR REVISED

CONSTITUTION?

Much controversy has swirled around whether theplanned constitutional change in Taiwan will takethe form of extensive revision of the existing consti-tution of the Republic of China (ROC) or replace-ment of the old charter by a new one.Attention hasfocused on the precise terms President Chen Shui-bian and others have used: the “new constitution” inChen’s campaign language; the “new version of theconstitution” in the English version of Chen’s May2004 inaugural speech; the “constitutional re-engi-neering project” or “reform” to which Chen hasalso referred; and the “amendment” favored byopposition leaders.

Much of the reason for this flap over languagelies in the connection between a “new constitution”and independent statehood. A new constitution isoften associated with a new state.A constitution thatis merely “revised” assumes continuity of a priorstate operating under an altered but ongoing consti-tution.To be sure, a new constitution does not nec-essarily mean a new state.The United States is mostunusual—operating under an eighteenth-centurycharter with relatively few amendments. ThePeople’s Republic of China (PRC) is governed byits fourth constitution, and China (which long pre-dates the PRC) has had still more constitutions,including the ROC Constitution now operative onTaiwan.

Nonetheless, a new constitution at least fails toconfirm the continuity of statehood.A new constitu-tion for Taiwan resonates strongly with assertions ofnew statehood because of two factors that are espe-cially worrisome for the PRC and inspiring foradvocates of Taiwan’s independence. First,post–World War II decolonization broke up the uni-tary sovereignty of major Europe-centered empires,and newly sovereign states in Africa and Asia

declared independence with new constitutions.Second, with the post–Cold War disintegration ofthe Soviet bloc, newly independent states adoptednew constitutions. (Significantly, these were scruti-nized by the West for democratic pedigrees as con-ditions for recognition.)

Thus, when President Chen and others in Taiwansay that a new constitution would not necessarilychange Taiwan’s status, they are legally correct.Politically, however, the connection of a new consti-tution with a declaration of statehood is strong andinescapable, particularly in light of views on themainland, among Taiwan’s pan-blue bloc and else-where that Chen’s strategy is to achieve independ-ence by semi-stealth tactics.As official PRC sourcesphrase it, Chen’s plan to make a new constitution in2006 and implement it in 2008 is “virtually atimetable for Taiwan’s independence,” especially inthe wake of Chen’s statement of “yibian yiguo” (onecountry on each side of the Strait) and his calls for aconstitution suitable to the “independent, sovereignnation” of Taiwan.

Chen’s flirtation with a “new” constitution mayreflect, variously, 1) attempts to press as far forward

Jacques deLisle is professor at the University of Pennsylvania Law School, and director of the Asia Program at theForeign Policy Research Institute.

Reforming/Replacing the ROCConstitution: Implications for Taiwan’sState (-Like) Status and U.S. Policy

JACQUES DELISLE

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as possible on the independence front; 2) desires toenergize the pan-green’s base1; 3) attempts to keepthe pan-green’s more extreme wing in line, especial-ly amid Lee Teng-hui’s calls for a fully “new” consti-tution that would break continuity with the ROC;or 4) efforts to depict accurately what proponentsfor constitutional reform expected—de facto dis-carding of the 1948 charter.

Yet, even mere “revision” can hardly avoid raisingsimilar issues.As Chen himself has said, substantiallyrevising the constitution will inevitably “indigenize”it, making the document more clearly Taiwanese,and more deracinated from its mainland origins andPan-China claim. Moreover, Chen at times hasdownplayed the distinction among phases such as“new,” “new version” and “amendment,” indicatingthat any form of constitutional reform can be usedto achieve the same ends.

In the end, however, differences between a “new”and a “revised” constitution remain legally intelligi-ble and politically significant. Because the notion ofa “new” constitution so resonates with new state-hood, the reasons for retreat to “mere” revisionproved compelling for most advocates of constitu-tional reform in Taiwan.

ARGUMENTS FOR REPLACEMENT AND

REVISION

If replacement or revision of the constitution wereto be justified as anything other than a move to pressstatus issues, arguments for the change had to invokeother ends. Chen and other proponents of constitu-tional reform have articulated several such aims.Many of them—on the face or perhaps as a matterof genuine intent—do not say anything aboutTaiwan’s status. But, given the law and politics ofTaiwan’s status and cross-Strait relations, these goalscannot avoid implicating questions of statehood andindependence.

Some explanations assert that the old constitu-tion—drafted across the Strait more than half a cen-tury ago for a large underdeveloped country withno history of democracy—simply does not fit anindustrialized, democratic society of 23 million peo-ple in the 21st century. Chen and his allies havemade this point explicitly, pointing out infirmities ofthe current charter and estimating that two-thirds ofthe articles need revision.

The status question emerges as soon as one beginsto consider possible remedial changes. A solution tothe identified problems means making a constitutionthat is, as Chen and others have asserted, indigenizedfor Taiwan—a charter of government that is moreclearly of, for and by the people of Taiwan. In Chen’smid-campaign formulation, constitutional reform orreplacement would solve the problem that the 23million people of Taiwan do not have a constitutiongenuinely belonging to them. As Chen put it in hissecond inaugural speech, a new version of the consti-tution will be a “contract” between the governmentand the people of Taiwan.

In addition, constitutional revision that recon-firms or emphasizes Taiwan’s democracy and protec-tion of human rights would resonate with questionsof status in the contemporary world. Emphasis onfeatures that distinguish Taiwan’s polity from that ofthe PRC is consistent with Taiwanese leaders’ long-pursued strategy of invoking post–Cold War inter-national law and politics. The global communityand, to a certain degree, legal doctrine no longertreat the sovereign state as a “black box” and insteadassess the “character” of states’ internal orders,enhancing the status of human rights—protectingdemocracies and diminishing the standing ofauthoritarian states with poor human rights records.More simply, such revisions focus on promotingdemocracy and protecting rights of inhabitants ofTaiwan, people distinct from those on the mainlandnot governed by that constitution.

Another related line of argument focuses onshortcomings of the government structure mandat-ed by the current ROC constitution. Proposals toaddress these issues call for basic changes to institu-tional structure—affecting separation of powers, theexistence of major government organs, and so on—to make the structure more suitable for an entitythat is distinct from mainland China.

Other arguments, including one that Chenadumbrated during early phases of the presidentialcampaign, more directly invoke principles ofdemocracy and human rights and, in turn, haveimplications for claims to international status that Ihave already noted. Chen and others have assertedthat adopting a new or revised constitution is aproper and necessary step in “deepening” or“advancing” Taiwan’s democracy, and an inherentand fundamental “right” of the Taiwanese people.

Finally, when any of these arguments occur inclose proximity to references to Taiwan’s “independ-ent” or sovereign “normal nation” status, the argu-ments for constitutional renovation come perilouslyclose to Beijing’s charges (an independence agendacourting a military response) and Washington’s fears.

PROCESSES OF CONSTITUTIONAL CHANGE

How constitutional change is effected in Taiwan hassignificant implications for issues of Taiwan’s statusand, in turn, the crisis-prone politics of cross-Straitrelations.The procedural options for changing theconstitution have officially narrowed to one thatwill rely upon a conventional, constitutionally pre-scribed process.The Chen administration apparentlyrecognized early that more extraordinary routes arepolitically impossible.The accepted route will hewto the terms of the existing ROC constitution,which requires a supermajority (three fourths)agreement first in the Legislative Yuan and then inan ad hoc National Assembly (to be convenedspecifically to approve the amendments). Thisprocess exudes procedural regularity and constitu-tional continuity, certainly far more than otherrecently contemplated means for altering the consti-tution.

Nonetheless, the promise to rely on this ordinaryprocess does not completely exclude less orthodoxprocedures that can raise issues of Taiwan’s status. Inhis 2004 inaugural, Chen called for a ConstitutionalReform Committee to seek consensus on changesthat ultimately would be adopted by the constitu-tionally prescribed process. Chen’s statement thatthis committee must include members from acrossthe political spectrum and a variety of experts inorder to avoid the errors of past piecemeal and par-tisan reforms and to insure a long-term focus maybe simply a sensible approach to major constitution-al reform. It may be a realistic bow to political cir-cumstances by a president who eked out a disputedvictory and will face a Legislative Yuan in which hisparty lacks the supermajority necessary to pass con-stitutional amendment proposals.

Still, the committee may have implications forTaiwan’s possible independence trajectory. Chen’scalls for a long-term focus, looking beyond partisanaims to the national interest, suggest more solemnityand a more fundamental character of potential

amendments—a tone at odds with Chen’s portrayalof many contemplated changes as “technical” or“engineering” matters. Chen’s remarks about thecommittee also seemed to leave open the theoreticalpossibility that constitutional reform might use a dif-ferent, less orthodox process if consensus warranted.

A popular “referendum” or “plebiscite” has beenmuch discussed and remains in play, even after theopting for the constitutionally prescribed process forchange.The idea of submitting a revised constitu-tion to a 2006 referendum was a staple of Chen’scampaign—although the notion was absent from hiscarefully vetted inauguration speech.

In the context of Taiwanese politics and cross-Strait relations, any reference to referendum leadspromptly and ineluctably to questions aboutTaiwan’s status.“Referendum” has long been associ-ated with the former program of the DemocraticProgressive Party (DPP), which, before it came topower, called for a referendum on independence.Asa two-time presidential candidate and as the head ofthe DPP, Chen has been at pains to distance himselfand his party from the venerable vision of aRepublic of Taiwan. But, he has kept linkagesbetween referenda and independence alive, insistingthat any change to the status quo of an independentTaiwan be subject to the approval of the peoplethrough a referendum.

The controversy over the referendum law adopt-ed in fall 2003 and over the two referendum issueson the ballot during the March 2004 presidentialelection did little to sever the connection. Critics inTaiwan and the PRC suspected that the Chenadministration saw referenda as a precedent for afuture vote on the question of Taiwan’s status.Theseconcerns were exacerbated by the backdrop ofinchoate and quickly muddied discussions in 2002of a possible law to permit a referendum on Taiwan’sstatus, amid the tumult over Chen’s statement thatthere was “one country on each side of the Strait.”

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The idea of submitting a revised con-stitution to a 2006 referendum was astaple of Chen’s campaign—althoughthe notion was absent from his care-fully vetted inauguration speech.

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The two questions put to the voters in 2004 werefreighted with implications for Taiwan’s status, albeitin a complex and indirect way. By addressingwhether Taiwan should enhance its defense capabil-ities if the PRC did not end its threats to use forceor move its missiles from the coastal area oppositeTaiwan, the first referendum issue implicitly invokeda right to self-defense by Taiwan and an obligationof the PRC not to use or threaten to use force—international legal rules that apply clearly androbustly only in relations among states.The secondreferendum issue, which concerned the pursuit of a“peace and stability” framework for cross-Strait rela-tions had similar resonances. Both questionsassumed or asserted long-standing Taiwanese claimsof equal status with the PRC. On expansive read-ings favored by Beijing’s Taiwan watchers and someproponents of Taiwan’s independence, this impliedclaims to full sovereign statehood.

During the earlier debate over the referendumlaw, Chen and others floated several possible refer-enda, most of which had implications for Taiwan’sstatus. One asked whether Taiwan should be repre-sented in the World Health Organization (WHO), aUnited Nations–affiliated organization.The PRChas uncompromisingly opposed Taiwan’s participa-tion in the WHO, and insisted that allowing a sepa-rate Taiwanese presence in the states-member-onlyorganization would implicitly grant Taiwan unduestate or state-like status. Others asked whetherTaiwan should have a new constitution or the legis-lature should be shrunk (an item still on the reform-ers’ agenda). Such contemplated but not pursuedreferenda implied claims to sovereignty, for essential-ly the same reasons that potential constitutionalreforms did.

Any implications for status issues might seem tobe diminished by the fact that the contemplated ref-erenda would lack legal effect. Nonetheless, holdingor even talking about non-binding referenda thataddress status-related issues can still shift the centerof political gravity in Taiwan and foreshadow a laterreferendum that would address status issues moresquarely. Moreover, the absence of legal effect and,in some cases, the substantive banality of contem-plated referenda may even make criticism morecredible that they are rehearsals for an independencereferendum and constitute sneaky incremental stepstoward a formal declaration of independence.

Other potential referenda could purport notmerely to endorse but to effectuate constitutionalchanges, including those with strong implicationsfor Taiwan’s status. Current legislation does not per-mit a constitutional change by referendum. It wouldrequire a Herculean reading of sparse and long-dor-mant provisions of the ROC Constitution—derivedfrom the political thought of Sun Yat-sen on peo-ple’s powers of referendum and initiative—to enactlegislation to authorize such a process.

An amendment to permit constitutional revisionby referendum would be legally unproblematic (butpolitically difficult). Chen and the DPP have urgedamendments to give much larger roles to referendain making future constitutional changes, but legisla-tors have balked at the idea of employing referendafor initiating, rather than ratifying, constitutionalreforms.

Of greater conceptual, but lesser practical, interestis whether an extra-constitutional referendummight amend or replace the constitution.The matteris surprisingly unsettled even in the United States,despite its long history in constitutional analysis anddemocratic discourse. A respected position holdsthat, because sovereignty resides in the people andthe constitution is their instrument, the people arefree to change their constitution through meansother than those specified in the constitution. Suchan approach seems fanciful, but perhaps not incon-ceivable in Taiwan. As the aftermath of the 2004presidential election briefly suggested, constitutionalinstitutions and processes might not be so legitimateor entrenched in Taiwan that they would be securefrom challenge, particularly amid a crisis over theconstitution itself. Political theory and legal doctrineprovide strikingly little ground for declaring such

The absence of legal effect and, insome cases, the substantive banality ofcontemplated referenda may even makecriticism more credible that they arerehearsals for an independence referen-dum and constitute sneaky incrementalsteps toward a formal declaration ofindependence.

extra-constitutional means illegal or stopping thempolitically.

Any referendum or direct popular action tochange or replace the ROC Constitution wouldfurther evoke the old “independence referendum”and could open the door to more radical changes tothe constitution, including ones implying or assert-ing independent statehood.

CONTENT OF CONSTITUTIONAL CHANGES

Whether constitutional revisions imply assertiveclaims about Taiwan’s status will depend largely onthe specific content of those changes.Yet, amid thediscussion of replacement or revision, as well as therelevant means, the substance of possible amend-ments was long left very vague and still remainsuncertain. Political calculations surely contributed.How far the administration can go depends onunsettled politics, including the outcome of legisla-tive elections in December 2004. Getting too pre-cise about content too early risked fragmentingcoalitions and triggering sharper criticism fromopponents in Taiwan and troubled observers in thePRC, the United States and elsewhere.

Still, many of the contours of possible changehave emerged and implicated issues of Taiwan’s sta-tus, albeit often indirectly and perhaps unintention-ally. Chen has pledged not to transgress the condi-tional “four no’s and one not” promise in his 2000inaugural speech: no declaration of independence,no change in the national title, no incorporation offormer President Lee Teng-hui’s “state-to-state” lan-guage in the constitution, no referendum on inde-pendence or unification, and not to drop theNational Reunification Council as well as theGuidelines for National Unification. In his secondinaugural speech, Chen reiterated that changesinconsistent with his earlier promise were off theagenda.

Changes that ignored these restrictions wouldhave international legal significance and bring polit-ical crisis. A change in the national title to theRepublic of Taiwan (or other similar names), abinding referendum favoring independence (or anonbinding referendum followed by implementa-tion), or a formal declaration of independence couldclearly cross one possibly remaining Rubicondefined by the international law of statehood. Since

the early 1990s,Taiwan’s leaders have increasinglyasserted that Taiwan has the legal requisites of state-hood (territory, population, effective and independ-ent government, and the capacity to engage in inter-national relations—de facto on a grand scale and dejure with a few states). Many changes incompatiblewith the “four no’s and one not” could satisfy anadditional, implicit requirement for statehood: a for-mal declaration of statehood, ideally, in the form of aU.S.–style July 4 proclamation or the similar state-ments issued by post-Soviet states in 1991. Thisrequirement has been approached more closely, butperhaps not met fully, by President Chen’s assertionof “one country on each side” of the Strait and hisclaim of a “sovereign”Taiwan (even though mud-died by later explanations that what he meant wasmerely “parity” of sovereignties), and by PresidentLee’s remarks about special state-to-state relationsand the lack of need to “declare independence”again for an ROC that had been a state for nearly acentury (in a statement that was, at best, problematicas an international legal argument).

Changes that strain or reject the “four no’s andone not” might not be securely off the agenda.Former President Lee and others have called foramendments to change the name of the country,dropping references to the ROC.Against that back-ground, Chen recently has raised again the contro-versial issue by supporting “Taiwan” as the appropri-ate term for the nation, in at least some internation-al contexts.2 Moreover, the “four no’s and one not”are themselves conditional on a premise—a fragileone amid recurrent PRC saber-rattling—ofBeijing’s having no intention to use force againstTaiwan.Also, the stated reason for Chen’s eschewingof amendments on sovereignty, independence andthe like in his May 2004 inaugural speech was notthat these changes were beyond the pale, but merelythat such changes required a social consensus thathad not yet been achieved.

Several discussed amendments conforming to the“four no’s and one not” could still raise questions ofstatus. First, the constitution might be altered todeclare that the territory of the ROC is limited toTaiwan and the minor islands. Chen has said thatplanned reforms will not do this. But Lee Teng-huiand others have pushed for it and Chen has leftsome wiggle room, putting national territory on thelist of topics about which there was no social con-

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sensus. Because a defined territory is a key legal cri-terion of statehood and because the principal lacunain Taiwan’s implicit case for statehood can bedescribed as a failure to “line up” the entity declaredto be sovereign with the entity that has the tangiblerequisites of statehood, such a “rectification of (terri-torial) claims” would be legally significant and, thus,political crisis-creating. It would go beyond the pre-vious—not constitutionally enshrined—step takenby former President Lee Teng-hui, when Taipeiannounced that the ROC’s current “jurisdiction”—but not necessarily sovereignty—was limited toTaiwan and other small islands.

Second, the constitution will likely be altered toaddress some of the asserted political-structuralinfirmities of the existing charter. Primarily, theseare said to lie in a system that is typically describedas half-parliamentary and half-presidential, and in alegislature that is too large by half.The former fea-ture produces political stalemate and risks govern-mental paralysis under conditions of divided demo-cratic government that the mainland framers of theROC Constitution never foresaw.The large size ofthe legislature is criticized as being needlessly costlyand conducive to corruption in a small country.Proposed amendments addressing these issuesquickly gained the legislature’s endorsement.Whilesuch changes and arguments for them have nothingobvious to do with independence, the planned revi-sions have features of indigenization, severing ofcontinuity and invocation of Taiwan’s democraticpolity that, as we saw earlier, resonate with questionsof status.

Third, other proposals have called for alteringother government structures and deleting traces ofideology in the ROC Constitution.These includereducing the number of branches from five to three(dropping the Examination Yuan and the ControlYuan), eliminating the National Assembly (whichwas reduced to roles of ratifying constitutionalamendments and approving impeachment, and hasbeen slated for elimination under a proposedamendment that has secured legislative endorse-ment) and provincial government (already gutted toa mere shell), deleting references to Sun Yat-sen’sprinciples, and removing what some see as quasi-socialist (and Sun-derived) principles of economicpolicy.These pertain on the surface and perhaps inpractice to what would ordinarily be considered

internal matters that many countries alter withoutimpact on issues of status. But in Taiwan, thesereforms would do especially much to sever key sym-bolic elements of continuity with the pre-1949ROC and connections with the Chinese mainlandand its history.

Fourth, proposals to address human rights,including the rights of the disadvantaged and abo-rigines, are also seemingly matters of domestic poli-tics and policy. But they can resonate with issues ofTaiwan’s status as well, for they again evoke thelegally and politically relevant “human rights con-trast” across the Strait, and underscore the sense of aTaiwan national community and identity.The latterpoint may be particularly salient, given Chen’s com-plaint that the existing constitution is regrettablyambiguous on the issue of national identity.

Fifth, changes addressing fundamental matters (ornumerous amendments on less important matters)can have an aggregative effect—suggesting disconti-nuity of a “new” constitution with an “old” one andimplying stronger claims to separate statehood.Talkof revising two-thirds of the articles and makingchanges on matters as varied as conscription, votingage, branches of government, rights of aborigines,principles of economic regulation, and so on, pointsto this possibility.

Last, but far from least, proposals to alter proce-dures for future constitutional amendments—espe-cially the pending plan to create a ratifying, but notinitiating, role for popular referenda—open a vistaof potentially broader and more fundamentalchanges to the constitution, including ones thatwould go more directly to issues of Taiwan’s statusor independence. It also of course would raise thefull range of referendum-related issues noted earlier.The proposed amendment that has won legislativesupport is more symbolic or portentous than imme-diately transformative, but it is nonetheless signifi-cant and it may not be the last word on the issue.

IMPLICATIONS FOR U.S. POLICY

The controversy over constitutional revision orreplacement in Taiwan poses particularly difficultchallenges for the United States and its policy—whether characterized as strategic ambiguity orstrategic clarity—of not siding with whicheverparty is “at fault” in a severe cross-Strait conflict.

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First, this U.S. stance and Americans’ singular pro-clivity for legal or legalistic analyses (despite a vener-able and recently highly visible disdain for interna-tional law) may well have skewed the recent cross-Strait wrangling (and much that has preceded it)toward legal or law-related arguments aimed at thecrucial U.S. audience.A legal approach here is polit-ically unhelpful, given international law’s residuallyWestphalian proclivity for reducing cases of uncer-tain or disputed sovereignty to binary choices of“one state or two” and legal analysis’s aversion toambiguity and imprecision that often serve well indiplomacy.

Second, among sources of cross-Strait controver-sy, the constitutional reform question has been espe-cially susceptible to contrasting characterizations.The PRC’s assertions of stealthy Taiwanese inde-pendence and Taiwanese claims of mere domesticreform both have relatively high degrees of plausi-bility.

Third, the United States became very deeplyinvolved in details of the referendum controversy,despite a well-grounded policy preference for avoid-ing such a role. U.S. officials vetted Chen’s inaugural

speech, publicly admitted contradictions and prob-lems in the U.S.“one China policy” exposed by thecontroversy over Taiwan’s constitutional reform, andopined about whether and when a fellow democra-cy should hold a referendum.

Finally,Taiwan’s asserted agenda of constitutionalreform aimed at promoting democracy and humanrights highlights an uncomfortable tension in U.S.foreign policy. It sharpens the dilemma betweenpursuit of realist national interests that seem to callever more strongly for good relations with Beijing,and support for liberal democratic values embracedin Taiwan and emphasized in Taiwan’s foreign policyagenda.

ENDNOTES

1. As one member of the administration put it,DPP supporters would be less likely to find mererevision compelling, and might see it as a recipe forrepeating the much-criticized piecemeal constitu-tional amendment processes of the 1990s.

2.A prominent presidential advisor has suggestedthat a name-changing amendment might be a sec-ond-stage reform.


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Alan M. Wachman is associate professor of international politics at the Fletcher School of Law andDiplomacy,Tufts University.The author is grateful to Bonnie Glaser for a most helpful response to an earlier ver-sion of this essay.

GROUPTHINK WITH CHINESE

CHARACTERISTICS

Chen Shui-bian’s plan to address deficiencies in theConstitution of the Republic of China (ROC) is, atmost, merely a putative source of the escalating ten-sion between the People’s Republic of China(PRC) and the ROC.As with so much that emergesfrom the controversy about Taiwan’s appropriate sta-tus, the apparent source of friction—in this instance,the constitution—is not really what the disagree-ment is about. While any change to the ROCConstitution may have symbolic import for bothBeijing and Taipei, the dispute across the TaiwanStrait remains fundamentally territorial.The consti-tutional commotion is just a symptom of what hasbeen an irremediable conflict about whether Chinaencompasses Taiwan or not.

The reason Beijing views Chen’s call to amendor rewrite the constitution as provocative is that thePRC leadership has convinced itself that ChenShui-bian has a “timetable for independence,” andthat changing the constitution represents one giantstep toward that objective.1 In their minds, Chen isstill adhering to the objectives laid out in the 1986“Political Platform of the Democratic ProgressiveParty (DPP)” and the DPP’s “Resolution RegardingTaiwan’s Future” of May 1999. In those documents,the DPP stated a determination to “establish a newconstitution drawn up to make the legal systemconform to the social reality in Taiwan . . .” and pro-claimed, “Taiwan is a sovereign and independentcountry. Any change in the independent status quomust be decided by all residents of Taiwan by meansof plebiscite.”2

Beijing fears that Chen Shui-bian plans to usethe constitution as a way of foreclosing the optionof Taiwan’s unification with the mainland.Evidently, it makes little difference to the PRC lead-ership that Chen Shui-bian has insisted that he hasno aim to adjust clauses in the constitution that dealwith matters of sovereignty. The PRC also dismisses

as disingenuous Chen’s assurances that his objectiveis to rationalize governance by ridding the constitu-tion of anachronistic impediments to democracy.From Beijing’s vantage it is not the constitution, perse, that is the problem, but Chen Shui-bian.

Beijing sees Chen as scheming to shatter the “sta-tus quo” in cross–Taiwan Strait relations with incre-mental steps toward a condition in which anyprospect of unification by peaceful means is snuffedout. Beijing fears that Chen’s machinations willresult in assertions about the definition and gover-nance of Taiwan as a sovereign state—expressed inconstitutional terms—that will be put in a referen-dum before Taiwan’s voters who are certain toembrace it as a legal avenue to self-determination.

Even though analysts in Beijing tend to believethat Chen will refrain from a formal declaration ofindependence, which the PRC has long identifiedas a casus belli, many PRC observers and officialsexpects Chen to shepherd his flock toward theendorsement of a constitutional framework thateradicates from the ROC Constitution vestigialinstitutional and semantic cues that Taiwan is only apart of China.

Using democratic consolidation as a guise, Chenis believed by Beijing to have embarked on a project

Constitutional Diplomacy: Taipei’s Pen, Beijing’s Sword

ALAN M. WACHMAN

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of constitutional reform that will supplant theambiguous, but temporarily tolerable, status quowith an unambiguous legal framework.Within sucha framework, the PRC leadership is deeply worriedthat Taiwan—by whatever name—will depict itselfas a sovereign state that is happily rid of structuralreminders that it was once part of China.That, inBeijing’s lexicon, would amount to “one China, oneTaiwan,” with which the PRC has always said it willnot abide.

Beijing is also aware that Chen is likely to play uphis devotion to democracy to garner sympathyabroad while casting the PRC as the dictatorialbeast, once again seeking to throttle the popular willof a community that wishes to govern itself. InHong Kong, the populace has embarrassinglyexposed the PRC’s commitment to the “one coun-try, two systems” framework as premised onBeijing’s role as arbiter of what occurs in both sys-tems, vitiating that model for use with Taiwan andhighlighting Beijing’s insuperable authoritarianism.

Temperamentally disinclined to see sovereigntyas flowing from the will of the governed, the leader-ship in Beijing sees democracy itself as a weapon inChen Shui-bian’s hands that he flouts withWashington and other sympathetic states in mind.The present leadership of the PRC knows, thoughrarely acknowledges, that the blunders of 1989 costthe PRC dearly and that its missile exercises of 1996and other displays of distemper toward Taiwanbrought few rewards. For that reason, Beijing is gen-uinely reluctant to be hoist again on its own author-itarian petard. However, the PRC feels Chen Shui-bian—abetted by the United States—is rapidlybacking it into a corner in which it will have nooption other than a military response, if only to pre-serve its credibility.

Indeed, Beijing now seems to be girding up itsloins and mobilizing public support for the eventu-ality of armed conflict, even if that means a con-frontation with the United States and further set-backs to economic and social development inChina.Whether this is an elaborate ruse concoctedfor the purposes of psychological warfare to intimi-date Taiwan and jolt Washington into restrainingChen Shui-bian is not easy to discern. What isbeyond doubt, though, is that Beijing has donenothing to signal its population that accommodat-ing Taiwan’s determination to remain autonomous

may serve China’s national interest, and enhance thepossibility of eventual unification, better than a hos-tile, armed response will.

Negotiating entails compromise. Consideringthat Beijing has not prepared its citizens to acceptanything less from Taiwan than subordination to the“one country, two systems” formula, one may con-clude that the leadership is not in an accommodat-ing mood.The message that Beijing broadcasts athome and abroad is that what it defines as “sepa-ratism” must be crushed, what it defines as China’ssovereignty and territorial integrity must be pre-served, and that the PRC is prepared to eat whatev-er bitterness is thrown in its face in the furtheranceof those abstract objectives.

Having been established at the top, these viewshave not been susceptible to much adjustment frombelow.The entire policy and propaganda apparatusof the PRC is, on this matter, appears locked into aform of groupthink with Chinese characteristics.While the PRC elite may have a nearly universaland reflexive commitment to unification, or at leastan opposition to Taiwan’s permanent independence,one could detect in recent years a wide range ofviews about how best to handle the issue of Taiwan.Within the past year, though, pluralism has givenway to consensus, or at least an enforced uniformity.

Persuasive speculation about the reasons why thishas happened focused on the struggle between HuJintao, president of the state and head of the ChineseCommunist Party (CCP), and Jiang Zemin, whoformally retired from those posts in 2002 butretained the chairmanship of the Central MilitaryCommission until he relinquished his hold on it inSeptember 2004.

Now that Hu Jintao has assumed the chairman-ship of the Central Military Commission and ischaracterized as having won the struggle with Jiang

Beijing has done nothing to signal itspopulation that accommodatingTaiwan’s determination to remainautonomous may serve China’snational interest, and enhance thepossibility of eventual unification.

Zemin for succession, observers will be eager to seewhether Beijing’s posture toward Taiwan is adjusted.Even if the untidy transition to the fourth genera-tion of leaders was not the principal cause ofBeijing’s increasing rigidity and belligerency towardTaiwan, it remains the case that ranks seem to havebeen closed on a policy of stridency and determina-tion to derail what is imagined to be Chen Shui-bian’s intentions to steer Taiwan to independence by2008. Although Hu undoubtedly differs from Jiangin style and may establish a different order of policypriorities, there is no evidence as of this writing thathe would treat the cross-Strait relationship different-ly than did Jiang Zemin and his leadership cohort.

INTENTIONALLY (MIS)READING BETWEEN

THE LINES?

The PRC’s increasing hostility toward Taiwan gen-erally and Chen Shui-bian particularly is the out-growth of a process that has been unfolding foryears. It began to intensify when former presidentLee Teng-hui called on “the people of Taiwan toforge a new constitution and to change the nation’sdesignation from the Republic of China to Taiwan”at the World Taiwanese Congress held on March 15,2003.3 Over the summer of 2003, Lee amplified hiscall for a new constitution and a new national titleby saying that the ROC no longer existed. By con-trast, Chen Shui-bian seemed eager to make thepoint that the ROC continues to exist, and that “Itis not disputed that I was sworn in as the ROC’s10th president on May 20, 2000, in line with thenation’s constitution.”4 Indeed, Chen can often beheard to refer to the Constitution of the ROC andhis obligation to serve under it as president of theROC.

However, on September 28, 2003, Chen Shui-bian called for a new constitution when headdressed a convocation of Democratic ProgressiveParty (DPP) members celebrating the party’s 17thanniversary. Chen explained why a new constitutionwas warranted, by focusing on problems in the con-stitution that impeded the consolidation of a ration-al democratic system. On the day after Chen’sspeech, Chiou Yi-jen, then the secretary-general ofthe presidential office, stated that “drafting a newconstitution does not necessarily mean changing thecountry’s official title” and the presidential

spokesman clarified that Chen’s call did not invali-date the “five no’s” in his first inaugural address.5

Still, the PRC is convinced that objectives laid outin the DPP platform of 1986 continue to controlTaiwan’s ruling party and President Chen. Havingdecided that Chen is entirely untrustworthy, oppos-ing what it sees as efforts by Chen to de-SinifyTaiwan, knowing Chen rejects the concept of “oneChina,” and in the context of ever-more assertivecalls by Lee Teng-hui for a Republic of Taiwan, thePRC has blurred the distinction between Chen’scall for constitutional reform and Lee’s calls todevise a new constitution for a state called Taiwan.

Within days of Chen’s remarks about a new con-stitution, the PRC initiated a campaign to charac-terize Chen’s announcement as having insidiousmotives. Guo Zhenyuan, a research fellow with theChina Institute of International Studies, was quotedin a report carried by the Xinhua News Agency asaccusing Chen of saying something he had not said.Guo stated that

Chen also showed his “true colors,” contra-dicting his 2000 promise of no declaration ofTaiwanese independence, no incorporation ofthe “two states” remarks into the constitution,no change of the so-called country’s name,and no referendum on Taiwan independenceduring his tenure as leader.6

Guo did not explain how he arrived at this con-clusion. Similarly, a report in Hong Kong’s Ta KongPao made the connection between Chen’s timetablefor a new constitution and a “timetable for inde-pendence,” although it did not specify why itviewed these as the same. The article stated, in part,

This is probably the first time Chen Shui-bianflagrantly set a timetable for promoting“Taiwan’s independence.” It is also his officialcall for “Taiwan’s independence,” provoking allChinese people, including Taiwanese compa-triots. Chen Shui-bian’s mentality of “rushingindependence” has once again been thor-oughly exposed.7

From that point forth, the die was cast.Protestations from Chen notwithstanding, the PRCpersisted in castigating him for operating from a

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timetable for independence.As Taiwan’s presidentialelection campaign heated up and as Chen misman-aged the activation of the referendum law, Beijingsaw in each step ever more reasons to believe that itsanalysis of Chen’s intentions was accurate. Chen andhis administration were, at times, diplomaticallyinjudicious and could have allayed the PRC’s anxi-eties more persuasively by preserving with greatereffect the potential for accommodation betweenBeijing and Taipei. However, Chen has not said any-thing about a “timetable for independence” and didrepeatedly specify many administrative and proce-dural problems that warranted constitutional changeand rationalization. He has also reiterated his com-mitment to the five no’s.

By the fall of 2003, the PRC was operating moreon the basis of its anxieties than in response toChen’s own assertions. Beijing had worked itself upinto such a fever about the possibility that Chenwould press for a new constitution ratified through areferendum that Hu Jintao evidently came downhard on the Central Leading Group for TaiwanAffairs for its failure to address the Taiwan issuemore effectively. According to a report in HongKong’s Hsin Pao, President Hu “pointed out that thegroup ‘did not have a strong will, failed to presentclear-cut viewpoints, and did not adopt a firm atti-tude’ in its communication with the U.S. side” aboutthe Taiwan issue. The article makes clear that fromthat moment, the PRC leadership expected that areferendum, if held, would be the leading edge of acampaign for independence.The formula was clear.The PRC now believes that a new constitution willbe drafted in 2006 and implemented, after receivingsupport through a referendum, in 2008 as Chen’stenure in office ends. On November 22, 2003,

Hu Jintao and Wen Jiabao unprecedentedlyconvened a Central Committee Politburomeeting to specially discuss the situation inthe Taiwan Strait . . . The meeting maintainedthat if no limit was set upon the so-called“plebiscite on legislation” pushed for byTaiwanese authorities, they would haveobtained a “legal source”(fa yuan) for Taiwan’sindependence; and if the proposal to “codifythe referendum into the constitution” was for-mally adopted,Taiwan would become a com-pletely independent country.8

It is not evident why Hu and Wen regard theamendment of the ROC Constitution as a legalsource for Taiwan’s independence when they do notregard the ROC Constitution in its present state as alegal source for ROC sovereignty over all China.Indeed, one wonders whether they are botheredmore by the potential humiliation that would comefrom a plebiscite that might expose the lack of com-mitment by Taiwan’s voters to unification or to theestablishment of constitutional language reflectingthat view. In any case, ever since November the ref-erendum and constitution have been perceived bythe PRC leadership as components of a schemetoward independence.The reelection of Chen Shui-bian in March 2004, after a most contentious elec-tion, was undoubtedly a severe blow to the hopes ofthe PRC. One response was to pre-empt Chen’sinaugural address, punctuated though it was by con-ciliatory phrases, by issuing a statement on May 17,2004, three days before the inauguration. In it, thePRC leadership articulated two stark options forTaiwan: acceptance of Beijing’s demands or war.Thestatement read, in part,

The Taiwanese leaders have before them tworoads: one is to pull back immediately fromtheir dangerous lurch toward independence,recognizing that both sides of the TaiwanStrait belong to the one and same China anddedicating their efforts to closer cross-Straitrelations.The other is to keep following theirseparatist agenda to cut Taiwan from the rest ofChina and, in the end, meet their owndestruction by playing with fire.9

BEIJING’S ARAFATIZATION OF CHEN SHUI-BIAN

The paradox, here, is that although the PRCclaims it will be mollified if the “Taiwan authorities”mouth the magic “one China” words, the PRC hasalready decided that it cannot trust Chen Shui-bianand that nothing he says is credible. In that respect,Beijing has painted itself into a corner by marginal-izing Chen Shui-bian in a manner that mirrors whatIsrael under Ariel Sharon seems to have done toYasir Arafat. One element of this marginalization isto discount what Chen says and to recast it in waysthat conform to pre-existing views of what Chen

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really means. For instance, following Chen’s inaugu-ral address of May 20, 2004, Xinhua News Agencyreported “Renmin Ribao Publishes Signed Article,Pointing Out that Chen Shui-bian’s May 20 Speechis ‘Taiwan-Independence’ Rhetoric with a HiddenAgenda.”The author reviewed Chen’s speech, andcommented that although Chen did not use thephrase yibian, yiguo [each side, one state],“the wholespeech was full of the notion of Taiwan as an ‘inde-pendent country.’ He was actually continuing toadvocate ‘each side, a (separate) country.’ Thisshowed that he had not given up his separatist‘Taiwan-independence’ stance.” Although Chen’sspeech did not call for a new constitution to beadopted by referendum, the author asserts thatChen’s words “hid connotations of continuousefforts to promote the ‘drafting of a new constitu-tion for Taiwan’s independence’ in 2008.”Deconstructing other phrases in Chen’s speech, theauthor concludes, “These few words unmistakablyshowed what Chen Shui-bian was actually thinkingdeep down.”10 It is startling that otherwise well-regarded and highly-placed analysts and scholarsworking at think tanks and research institutionsassociated with the PRC government express them-selves in terms of this rationale: Chen Shui-biandoes not mean what he says, but we know what isreally in his heart.

The PRC leadership has succumbed to a self-induced panic on the basis of what it imagines ChenShui-bian really intends by the words it routinelydismisses. Anger and frustration have left Beijingdeaf to rhetorical openings from Chen on which itmight have built accommodation, and blind to olivebranches offered by Taipei to calm roiled waters.

Analysts in the PRC assert that—from Chen’spast association with the Taiwan independencemovement—it is possible to know what he will doin the future. In its myopic focus on the intentionsof the individual leader, rather than on the role ofthe individual within a broader political system thatexercises constraints on ambitions, the PRC ignoresthe difference between an individual’s dreams andthe political posture of a person who holds office.Regardless what may be in Chen’s heart, he isobliged to function in a political environment inwhich he has only the power to persuade his con-stituents and, in any event, must work with a vigor-ous opposition that will do anything in its power to

cut him off at the knees. Moreover, the PRC’s viewof Chen and the DPP as chugging along on a pre-determined path toward independence unmindfulof political realities—chief among them the PRC’sbelligerence—fails to take note of slight moderationin the DPP’s stated ambition. While there are plen-ty of people in and out of the DPP who probablywould like for Taiwan to remain independent ifthere were no significant costs to doing so, even theDPP has bowed to the need for greater prudence.On its website, the DPP offers the view

As for the issue of sovereignty, since underpresent international conditions, it is impossi-ble for either side across the Strait to compro-mise on this matter, the DPP prefers to avoiddiscussion with China on this sensitive yetcontentious topic while dealing with the morepractical and functional matters first.11

Beijing’s preoccupation with the national leaderreflects not just a lack of trust in Chen Shui-bian,but a fundamental misperception of the democraticprocess. Even in the authoritarian system he com-mands, Hu Jintao is not at liberty to dictate policywithout regard to powerful constituencies. Yet, thePRC leadership seems to regard Chen Shui-bian asacting without concern for popular will or institu-tional checks that limit his power to simply declareindependence—or agree to unification under the“one China” banner—by fiat. Beijing has neglectedor discounted the fact that most respondents to pub-lic opinion polls in Taiwan express no interest in“independence” and prefer some version of the “sta-tus quo.”They also seem to minimize the institu-tional and procedural hurdles that must be over-come to make any change to the constitution.

THE ROC CONSTITUTION:IF IT AIN’T FIXED, DON’T BREAK IT

The focus on constitutional change as a means ofestablishing independence is a red herring. ChenShui-bian and his predecessor, Lee Teng-hui, haverepeatedly stated their views that the ROC isalready a sovereign state that is independent of thePRC and has been one since 1912.12 Moreover, theROC Constitution of 1947 by which Taiwan hasbeen governed contains numerous clauses that

underscore the sovereignty of the ROC and mightbe construed to challenge that of the PRC.Whilethe PRC is enraged by the prospect that Chen willuse constitutional reform as a way of assertingTaiwan’s sovereignty and rally popular opinion towhat it sees as Chen’s crusade, there are alreadyample causes for Beijing’s ire in the outdated docu-ment that Chen has been seeking to amend.

That Beijing would be so sensitive to theprospect of a new or revised constitution seemsodd, considering that it denies that the ROC stillexists.The PRC declared that the ROC was “over-thrown” in the civil war of the late 1940s, and whileit refers to the island as Taiwan, not the ROC, it hastolerated Taiwan existing as the Republic ofChina.13 Ironically, even though Beijing refers toTaiwan as “Taiwan,” it is unnerved by the prospectof Taiwan referring to itself as “Taiwan.” Beijing isevidently more at ease when Taiwan refers to itselfas the ROC because that name, at least, implies aconnection to China.

That is not to say that the PRC is satisfied withTaiwan remaining autonomous, but it took somecomfort from the long-standing KMT position thatheld open the possibility of unification.This is whythe real cause of the present escalation of hostilitiesis not the constitution, but Beijing’s perception ofChen Shui-bian’s intentions. If Beijing believed thatChen had a genuine determination to work towardsome form of accommodation on the matter ofTaiwan’s status, everything else he has done orpledged to do would appear much less threateningto the PRC’s core interest.

As it stands, the PRC’s view of the ROCConstitution seems to be that “if it ain’t fixed, don’tbreak it.”That is, even though the PRC has longasserted that the ROC no longer exists as a sover-eign state and even though the ROC Constitutionof 1947 may be offensive in the eyes of the PRC,Beijing would prefer that Chen did not tamper withit, leaving a document that is bad enough alone.Anychanges to the constitution draw attention to threediscomforting realities:

(1) Beijing has failed to lure the people ofTaiwan to see merits in unification;

(2) the people of Taiwan—either by legislativemeans or by referendum—are capable of affirmingtheir autonomy and intentions to remain apart fromChina; and

(3) the PRC has failed to deter by threats of forcewhat it deems to be separatist activity.

That leaves Beijing having either to swallow itspride at the cost of its credibility, or to make goodon its threats to use force.

An elevation in hostility during the summer of2004 stemmed in part from the announcement ofthe Dongshan military exercises that were to beconducted in September by the PRC, with a domi-nation of Taiwan’s airspace as the announced objec-tive, as well as in other sharp rhetoric directed bothat Taipei and Washington.14 Although the exerciseswere reportedly cancelled at the end of August, theantagonism has not abated. The PRC leadershipcontinues to see Chen Shui-bian and his efforts atconstitutional “re-engineering” in the most threat-ening light, to ignore signals to the contrary, and toexpress resolve to match Chen’s efforts, step by step,insuring that as he progresses along his timetable,Beijing will ratchet up its pressure on Taiwan.

In the end, though, Beijing has signaled that if itmust, it will put an end to this race and that it willensure the situation is resolved on its own terms, notChen’s. Ominous warnings from Beijing haveprompted Washington to dig in its heels, too, withthe usual round of Congressional chest thumpingabout the sanctity of the Taiwan Relations Act.ThePRC has used meetings with visiting U.S. VicePresident Dick Cheney and National SecurityAdviser Condoleezza Rice and a September meet-ing between Secretary of State Colin Powell andForeign Minister Li Zhaoxing to underscore theseverity of the unfolding situation.With all partiesdonning their most unyielding masks of indignationand determination, and none now prepared to con-ciliate, the grave situation threatens to move beyonda point at which last minute solutions can be effec-

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With all parties donning their mostunyielding masks of indignation anddetermination, and none now preparedto conciliate, the grave situationthreatens to move beyond a point atwhich last minute solutions can beeffective.

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tive. Dialogue and incentives to accommodate areurgently needed.

Despite the bellicose tone of recent pronounce-ments from Beijing and Washington and a livelydebate on Taiwan that results in what the PRC willsee as further provocation, accommodation shouldstill be possible if Taiwan were to act in ways thatwould persuade Beijing that it has not foreclosed onsome types of association with China. Of course,there are vocal political constituencies in Taiwanwho oppose any association with China, whether itbe the PRC or some other Chinese state.That theycling to a vision of absolute and permanent separa-tion, though, makes them a minority. A far greaternumber of respondents to public opinion polls onTaiwan have expressed a preference for the elasticconcept of the “status quo,” and a healthy segmentof those people are open to the possibility of associ-ation with China under appropriate conditions.Others might be persuaded that an association withChina merited consideration if the incentives werestructured persuasively, especially as those genera-tions that act now in reaction to the suppressionthey suffered at the hands of the authoritarian KMTpass power to those generations that have knownnothing but democracy in Taiwan.

This leads to a role for the United States. Perhapsit is time for Washington to consider how its ownapproach to this enduring dispute has impededaccommodation by both Beijing and Taipei. Thesympathy Americans may feel for Taiwan’s plight inthe shadow of PRC threats has prompted policiesand postures intended to support and defend Taiwanthat have enraged Beijing and, paradoxically, may becontributing to an erosion of Taiwan’s security.Beijing may be correct in seeing the robust militaryassistance that Washington has made available toTaipei as encouraging many in Taiwan to feel com-placent about the likelihood of a PRC militaryassault and dismissive of Beijing’s persistent rhetori-cal belligerence. Political actors in Taiwan who failto take seriously enough the threat of the PRC may,indeed, have been emboldened to take steps thathave contributed to an escalation of cross-Strait ten-sions.These, in turn, inflame Beijing’s sense that itmust act even more assertively if only to avoid beingseen in Taipei and elsewhere as a “paper tiger.”

One approach to disrupt this potentially destruc-tive cycle is to urge Taipei to see that it cannot be

independent so long as it is perpetually dependenton Washington to protect it from a military assaultby Beijing. In that sense, Taiwan really cannot beindependent unless it has the capacity to defenditself or persuade Beijing that what Taiwan experi-ences as independence may be labeled by Beijing asthe endorsement of some version of the “oneChina” principle.Taiwan now seeks “peace, stability,and development.”These goals can only be attainedif Beijing’s belligerence can be quelled.An enduringcondition of peace, stability, and development—tosay nothing of independence—cannot be estab-lished and sustained if it must depend on a perpetu-al commitment of security by the United States.

Washington’s long-standing good will does notmean Taiwan can expect the American securityumbrella to remain extended indefinitely. Sellingarms to Taiwan is not a long-term solution, it is astop-gap measure. However, if Taiwan sees the U.S.commitment as permanent there is little reason forit to apply itself in search of a path to some mutual-ly acceptable accommodation. If it understoodAmerican support as coupled to an expectation thatTaipei act responsibly in concert with U.S. interests,it might exercise greater restraint and creativitywithout Washington’s prompting.A failure by Taipeito balance its determination to remain autonomouswith Beijing’s determination to have Taiwan seeitself as part of some entity called “China” does notappear to serve well the U.S. interest in avoiding thedisruption of peace in the Western Pacific. Similarly,Beijing’s unyielding view of Taiwan’s status does lit-tle to take account of the realities of a burgeoningand distinct political identity on the island and thepotential for amity and mutual benefit that wouldflow from a looser expectation of how the two sidesof the Taiwan Strait ought to be bound.

For the solution to this problem to be peaceful,there is only one avenue: compromise. However, notonly will Beijing and Taipei each have to compro-mise on matters of principle, but Washington will,too.Adjusting the posture that the United States hastaken toward Taiwan will not be easy. For one thing,selling weapons to Taiwan makes Americans feelgood about arming a democratic David to defenditself against an authoritarian Goliath. No right-thinking American political leader wants to take anystep that would degrade Taiwan’s security or causeBeijing to doubt Washington’s inclination to inter-

vene on behalf of Taiwan should the cross-Straitcontroversy erupt in violence. However, the urge tostay the course must be reconciled with the recogni-tion that absent divine intervention on David’sbehalf, Goliath was much more likely to prevail.15

Washington should consider how Americanweapons sales, military coordination, and otherforms of support to Taiwan threaten and infuriatethe Chinese Goliath, driving him to battle.Considering how frequently the PRC raises withAmerican officials its objections to U.S. arms sales toTaiwan, it may be worth exploring with interlocu-tors from Beijing what the PRC is prepared to“give” in order to “get” the United States to modifywhat it offers to Taipei.

On the matter of the constitution itself,Washington would be correct to ensure that Taipeihas no doubt that fiddling with clauses pertaining tosovereignty, territory, or national title—even if theyare expressed as “clarifications”—would be seen inBeijing as provocative, would do little to advance thegoals of democratic consolidation that Chen Shui-bian has articulated as reasons for constitutional re-engineering, and are therefore both risky and insup-portable. This is not a comfortable stance forWashington to adopt, as it suggests that the UnitedStates is less committed to allow a democraticprocess to take its course in Taiwan than it is to avoidthe provocation of Beijing. If Taiwan were preparedto bear alone the consequences of triggering a PRCassault, then Washington’s view of where prudentself-restraint must trump exuberant national self-expression would be irrelevant. Considering theexpectation in Taiwan that the United States be oncall to intervene whenever the PRC erupts in hos-tility,Washington is not amiss in stating its objectionsto symbolic actions by Taipei that could have devas-tating costs and Taipei would not be amiss in heed-ing those warnings.

ENDNOTES

1. “‘New Constitution’ Means Timetable forTaiwan Independence: Official,” Xinhua NewsAgency,April 14, 2004.

2. See “China Policy” on the website of the DPP(reproduced at http://203.73.100.105/english/pub/LIT_12.asp?ctyp=LITERATURE&catid=1979&pcatid=0) and “Establishing of a Sovereign andIndependent Republic of Taiwan,” the first article inthe “Party Platform of the Democratic Progressive

Party” (reproduced at http://203.73.100.105/eng-lish/pub/LIT_1.asp?ctyp=LITERATURE&pcatid=1975&catid=2121); “Resolution RegardingTaiwan’s Future Passed by the National PartyCongress (8th Term, 2nd Meeting) May 8, 1999,”(reproduced at http://www.gio.gov.tw).

3.“Former President Calls for Formation of NewConstitution for Taiwan,” Central News Agency,March 15, 2003.

4. Sophia Wu, “Chen Says He Assumed thePresidency under the ROC Constitution,” CentralNews Agency,August 27, 2003.

5. “KMT Accuses President Chen Shui-bain ofPlanning Independence Push,” Agence France Presse,September 29, 2003;“Taiwan Official Says Call ForNew Constitution Not to Affect ‘Five Noes’Pledge,” Central News Agency, September 30, 2003.

6. “PRC Expert Guo Zhenyuan Calls ChenShui-bian ‘Hopeless Taiwan Independence Ele-ment’,” Xinhua News Agency, September 30, 2003.

7. “TKP Column Blasts Chen Shui-bian’sProposed Timetable for ‘Taiwan Independence,’” TaKung Pao, September 30, 2003.

8. “Wen Jiabao Seeks U.S. Help to ContainTaiwan Independence,” Hsin Pao, December 11,2003.

9. “Taiwan Affairs Office of CPC CentralCommittee,Taiwan Affairs Office of State CouncilAre Authorized to Issue a Statement on CurrentCross-Straits Relation,” Xinhua News Agency, May17, 2004.

10.“Remin Ribao 11 June Signed Article RefutesChen Shui-bian Inaugural Speech as Rhetoric,”Xinhua Domestic Service, June 10, 2004.

11.“China Policy” as presented on the website ofthe DPP.

12.While Lee Teng-hui seems to have dissociatedhimself with that view since he left the presidency,Chen Shui-bian has not.

13. People’s Republic of China, White Paper onthe Taiwan Question and Reunification of China(Beijing:The State Council,August 1993),

14. “Three purposes of military maneuver atDongshan Island,” People’s Daily, July 19, 2004.

15. In the Bible, David rejected King Saul’s offerof armaments and went into battle dressed as he was,armed only with a staff, a sling and five smoothstones. David warned Goliath that he came in thename of the Lord and “on this day, the Lord willdeliver you into my hand.”

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THE WOODROW WILSON INTERNATIONAL CENTER FOR SCHOLARSLee H. Hamilton, President

BOARD OF TRUSTEESJoseph B. Gildenhorn, Chair; David A. Metzner, Vice Chair. Public Members: James H. Billington, Librarian of Congress; JohnW. Carlin, Archivist of the United States; Bruce Cole, Chair, National Endowment for the Humanities; Roderick R. Paige,Secretary, U.S. Department of Education; Colin L. Powell, Secretary, U.S. Department of State; Lawrence M. Small,Secretary, Smithsonian Institution; Tommy G. Thompson, Secretary, U.S. Department of Health and Human Services. PrivateCitizen Members: Joseph A. Cari, Jr., Carol Cartwright, Donald E. Garcia, Bruce S. Gelb, Daniel L. Lamaute, Tamala L.Longaberger, Thomas R. Reedy

WILSON COUNCILBruce S. Gelb, President. Elias F. Aburdene, Charles S. Ackerman, B.B. Andersen, Russell Anmuth, Cyrus A. Ansary, LawrenceE. Bathgate II, Theresa Behrendt, John Beinecke, Joseph C. Bell, Steven Alan Bennett, Rudy Boschwitz, A. Oakley Brooks,Donald A. Brown, Melva Bucksbaum, Richard I. Burnham, Nicola L. Caiola, Mark Chandler, Peter B. Clark, Melvin Cohen,William T. Coleman, Jr., David M. Crawford, Jr., Michael D. DiGiacomo, Beth Dozoretz, Elizabeth Dubin, F. Samuel Eberts III, I.Steven Edelson, Mark Epstein, Melvyn J. Estrin, Sim Farar, Susan R. Farber, Roger Felberbaum, Julie Finley, Joseph H. Flom,John H. Foster, Charles Fox, Barbara Hackman Franklin, Norman Freidkin, John H. French, II, Morton Funger, Gregory M.Gallo, Chris G. Gardiner, Gordon D. Giffin, Steven J. Gilbert, Alma Gildenhorn, David F. Girard-diCarlo, Michael B. Goldberg, RoyM. Goodman, Gretchen Meister Gorog, William E. Grayson, Ronald Greenberg, Raymond A. Guenter, Cheryl F. Halpern, EdwardL. Hardin, Jr., John L. Howard, Darrell E. Issa, Jerry Jasinowski, Brenda LaGrange Johnson, Shelly Kamins, James M.Kaufman, Edward W. Kelley, Jr., Anastasia D. Kelly, Christopher J. Kennan, Willem Kooyker, Steven Kotler, William H. Kremer,Raymond Learsy, Dennis A. LeVett, Francine Gordon Levinson, Harold O. Levy, Frederic V. Malek, David S. Mandel, John P.Manning, Jeffrey A. Marcus, John Mason, Jay Mazur, Robert McCarthy, Linda McCausland, Stephen G. McConahey, Donald F.McLellan, Charles McVean, J. Kenneth Menges, Jr., Kathryn Mosbacher, Jeremiah L. Murphy, Martha T. Muse, John E.Osborn, Paul Hae Park, Gerald L. Parsky, Jeanne L. Phillips, Michael J. Polenske, Donald Robert Quartel, Jr., J. John L.Richardson, Margaret Milner Richardson, Larry D. Richman, Carlyn Ring, Edwin Robbins, Robert G. Rogers, Otto Ruesch, JuanA. Sabater, Alan M. Schwartz, Timothy R. Scully, J. Michael Shepherd, George P. Shultz, Raja W. Sidawi, Kenneth Siegel, RonSilver, William A. Slaughter, James H. Small, Shawn Smeallie, Gordon V. Smith, Thomas F. Stephenson, Norman Kline Tiefel,Mark C. Treanor, Anthony G. Viscogliosi, Christine M. Warnke, Ruth Westheimer, Pete Wilson, Deborah Wince-Smith, HerbertS. Winokur, Jr., Paul Martin Wolff, Joseph Zappala, Richard S. Ziman, Nancy M. Zirkin

ABOUT THE CENTERThe Center is the living memorial of the United States of America to the nation’s twenty-eighth president, Woodrow Wilson.Congress established the Woodrow Wilson Center in 1968 as an international institute for advanced study, “symbolizing andstrengthening the fruitful relationship between the world of learning and the world of public affairs.” The Center opened in1970 under its own board of trustees.

In all its activities the Woodrow Wilson Center is a nonprofit, nonpartisan organization, supported financially by annualappropriations from Congress, and by the contributions of foundations, corporations, and individuals. Conclusions or opin-ions expressed in Center publications and programs are those of the authors and speakers and do not necessarily reflectthe views of the Center staff, fellows, trustees, advisory groups, or any individuals or organizations that provide financialsupport to the Center.

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taiwan's constitutional reform: domestic inspiration and external

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