Introduction
China and Taiwan are diverging wider and wider, although both fall outside what Ran Hirschl calls the ‘usual suspect’ category in comparative constitutional studies.Footnote 1 Apart from the brief administration of Taiwan by the then Nanjing-seated Republic of China (ROC) government following the end of the Japanese colonial rule in 1945, the governments in China and Taiwan have taken divergent paths since 1949.Footnote 2 The communist People's Republic of China (PRC) has since set out for a series of bumpy socialist experiments, including the ongoing ‘socialism with Chinese characteristics’ engendered by Deng Xiaoping's ‘Reform and Opening-Up’ in 1978.Footnote 3 In contrast, Taiwan has evolved from a quasi-military dictatorship under the ROC regime – led by the Nationalist Party (also known as Kuomintang, KMT) – into a thriving liberal democracy in its own right.Footnote 4 While China is being seen as returning to its socialist revolutionary road towards the restoration of China's lost status on the world stage,Footnote 5 Taiwan is gradually ridding itself of its Chinese baggage in all aspects, including its constitutional order.Footnote 6 The legitimacy of the Chinese Communist Party (CCP) regime (or simply ‘Communist regime’) and its underlying constitutional order – as understood in a non-normative wayFootnote 7 – is frequently attributed to China's economic prosperity brought about by the CCP's latest socialist experiment,Footnote 8 while Taiwan embraces democracy in the (re)legitimation of its Chinese-born constitutional order.Footnote 9 China and Taiwan have apparently diverged on their constitutional roads since their split in 1949.
In this article, I compare formal constitutional amendments in China and Taiwan in order to cast light on the long shadow cast on the diverging constitutional roads taken by China and Taiwan – as manifested in their respective ‘constitutions of amendment’Footnote 10 – by the Chinese encounter with ‘modernity’,Footnote 11 an emerging theme in the growing constitutional discourse on the Global South.Footnote 12 Despite its various usages,Footnote 13 the notion of the ‘Global South’ connotes a shared sense of identity across national boundaries that has taken shape in political (re)imagination amid the fight against colonialism and the struggle with modernity, with a focus on economic development.Footnote 14 On this view, the history of what constitutes the Global South effectively predates the emergence of the term ‘Global South’ in the literature,Footnote 15 while the contested concept of modernity remains pivotal to the recent ‘Southern Turn’ in comparative constitutional studies.Footnote 16 Notably, China, which continues to identify itself as part of the Global South and remains on various lists of Global South constituents,Footnote 17 has struggled with modernity for more than a century,Footnote 18 and the Chinese legacy remains indelible in the formation of a new identity in Taiwan.Footnote 19 Thus, a comparison of China and Taiwan in their dealing with the amendments of their respective master-text constitutions helps to shed light on how modernity – ie, China's reception of Western ideas and institutions in its quest for modern statehoodFootnote 20 – has conditioned the way the legitimation of formal constitutional revision has been imagined in both constitutional realms.Footnote 21 Preceding the emergence of the term Global South, China's and Taiwan's struggles with constitutional modernity track the extended historical arc of the Global South and thus tell a constitutional story of what I call the pre-Global South.
Taking a close look at the formal constitutional revision in China and Taiwan through the lens of the constitution of amendment, I advance the thesis that China's encounter with modernity has not only influenced the amendments to the current PRC Constitution of 1982,Footnote 22 but has also cast a long shadow on the transformative changes within the ROC Constitution of 1946 – which continues to be Taiwan's working constitution.Footnote 23 As will be further discussed, preambular changes have been characteristic of the five amendments to the 1982 PRC Constitution, while the rule-conformity character of Taiwan's multiple rounds of formal constitutional revision – styled first as ‘Temporary Provisions’ and then as ‘Additional Articles’Footnote 24 – indicates that the preservation of formal identity of the 1946 ROC Constitution has been central to Taiwan's constitutional transformation.Footnote 25 I argue that the prominence of the preamble in China's constitutional amendments reflects the programmatic character of its socialist constitution, which is seen as an instrument for progress and emancipation through revolutionary forces, while the meticulous observance of the amendment rules throughout Taiwan's formal constitutional revision provides a semblance of legal continuity, indicating the pivotal role of legality in its constitutional development. Progress and continuity underpin the respective necessary legitimating conditions for constitutional amendment in China and Taiwan. Tracing the revolution-progress and the legality-continuity nexuses to the Chinese quest for liberation from Western imperialism, I suggest that modernity informs both China and Taiwan in maintaining the legitimacy of their respective constitutions, despite their divergent constitutional roads.Footnote 26
Before I proceed, I should make clear what this article is about and what it is not about. As suggested above, the article is about the legitimacy of amendment with respect to the formal revision of the master-text constitution. Despite the importance of the legitimacy of constitutional amendment for the maintenance of a legitimate constitutional order, the article is not a disquisition about the legitimacy of the constitutional order or the master-text constitution per se.Footnote 27 Focusing on the legitimacy of constitutional amendment through the lens of the ‘constitution of amendment’ as discussed below, this article is neither a critique of the substance of individual amendments nor a commentary on the provisions of constitutional revision. It should be noted that Taiwan's constitutional distinctiveness as manifested in its constitutional amendment does not tell us whether Taiwan's constitution has engendered a distinct statehood for Taiwan and to what extent it displaces the Chinese legacy of the 1946 ROC Constitution in the legitimation of constitutional amendment.Footnote 28
This article proceeds as follows. It first offers a methodological note on how to gauge the legitimacy of constitutional amendment, and then takes a close look at constitutional amendments in China and Taiwan. The close examination of constitutional amendments in China and Taiwan reveals that the emphasis on the constitutional preamble testifies to China's programmatic constitution, while the adherence to formal amendment procedures contributes to the preservation of the legal identity of the 1946 ROC Constitution in Taiwan. The characteristic features of the respective constitutions of amendment in China and Taiwan suggest that constitutional amendment in China is meant to reflect the new political direction under socialism, as the constitution is envisaged as a steering programme, while concerns about constitutional continuity have persistently influenced the conduct of constitutional revision across different regimes in Taiwan. Following on from this discovery, the article investigates how the Chinese encounter with modernity has cast a long shadow on both communist China and dictatorial-turned-democratic Taiwan in their continuing search for legitimacy in constitutional amendment. While the idea of revolution-induced progress at the core of modernity underpins the view of the constitution as a steering programme in China, the insistence on institutional continuity in the amendment of the 1946 ROC Constitution reflects the gravity of legality in the early quest for modernity in Chinese history. Both progress and continuity reflect the struggle of Chinese reformists in the early twentieth century to rid their motherland of the yoke of Western imperialism in China's quest for modernity. The argument is summarised in the conclusion.
Searching for Legitimacy from Within: Legitimating Ideology and the Constitution of Amendment
Although the concept of legitimacy is not alien to legal scholars, what legitimacy exactly means remains elusive.Footnote 29 In jurisprudence, it sometimes refers to moral authority; at other times it is subsumed under the discussion of the normative character of the law.Footnote 30 When it comes to constitutional law and theory, the question of legitimacy has mostly been raised in relation to the origin and continuation of the polity and its constitution. Rooted in the long tradition of liberal democracy, the concept of legitimacy tends to be equated with democratic legitimacy in constitutional scholarship,Footnote 31 while the question of who has the legitimacy to give the authoritative voice to the constitution has dominated the literature.Footnote 32 Yet, with the very idea of the constitution extended beyond the democratic sphere, democracy and legitimacy are delinked. As long as a polity is accepted by its people, it must be vested with legitimacy.Footnote 33 The sociological fact of acceptance becomes the indicator of legitimacy, while what underlies acceptance remains unclear.Footnote 34
The unarticulated state of constitutional theory on legitimacy becomes even more complex when constitutional amendment comes into the equation.Footnote 35 It is never clear whether a constitutional amendment is just a ‘reform of existing law’ – ie, the constitution – or a disguised revolution.Footnote 36 With the doctrine of unconstitutional constitutional amendment pervading more and more constitutional realms, the power to amend seems to be tamed by the law.Footnote 37 Legality, understood in both procedural and substantive terms, is thus considered necessary for constitutional amendment to lay claims to legitimacy as amendment before lawyers.Footnote 38 Yet, apart from legality, what makes constitutional amendment legitimate in general?
Such conceptual fuzziness results from the conflation of two distinct questions of legitimacy: definition and basis, which have been conflated and concealed under the rubric of sociological legitimacy.Footnote 39 The equation of legitimacy with acceptance illustrates this point. When the legitimacy of a polity and its underlying constitution are questioned on normative grounds, a common response is: ‘What do you mean by legitimacy? Doesn't the regime enjoy wide support of its people?’Footnote 40 In this way, legitimacy is not only defined but also decided by the sociological fact of popular acceptance. Yet, as Max Weber explained over a century ago, in order to analyse a polity's successful claim to domination (Herrschaft), we need not only to distinguish between different types of legitimate authority, but also to examine their respective bases or sources of legitimacy.Footnote 41 Notably, paralleling his classical three ideal types of legitimate authority – traditional, charismatic, and legal/bureaucratic – Weber attributed their basis of legitimacy to belief in the sacredness of conventions from time immemorial, in the personal gift of grace, and in the impersonal bureaucratic rationality, respectively.Footnote 42 Thus, belief is indispensable to the claim to legitimate authority.Footnote 43 In order to dig out the basis of legitimacy in the case of constitutional amendment, we need to take into account its underlying belief, ie, the legitimating ideology of a successful claim to legitimate authority in respect of constitutional amendment.Footnote 44
It comes as no surprise that totalising doctrines such as socialism or fascism, even ‘Asian values’, spring to mind when we speak of the legitimating ideology of political systems.Footnote 45 To investigate what makes constitutional amendment legitimate in China and Taiwan, I depart from this prevalent stance. Rather, I turn to constitutional amendment itself in search of its own legitimating ideology. Specifically, multiple rounds of constitutional revision may or may not indicate enduring features in consistency. If constitutional amendments do indicate persistent characteristics in substance, process, form, or style, this may well suggest that such enduring features are constitutive of those constitutional amendments. Put differently, for such a constitutional amendment to claim legitimacy, it cannot do without its constitutive components in substance, process, form, or style,Footnote 46 which I call the constitution of amendment. Seen in this light, the consistent character of the constitution of amendment – the formal and material features constitutive of constitutional amendment – is indicative of what is believed to be indispensable to a constitutional amendment, and thus underlies its legitimacy.Footnote 47 By looking into what underlies the legitimacy of constitutional amendment from an internal point of view, the constitution of amendment as developed in these pages, together with the legitimating ideology to which it speaks, gives concrete shape to the cultural dimension of constitutional amendment.Footnote 48 In sum, the constitution of amendment embodies the legitimating ideology of constitutional amendment. Taking this methodological view, I turn next to the respective constitutions of amendment in China and Taiwan.
Two Constitutions of Amendment: New Direction vs Structure Preservation
Accenting the Preamble: Constitutional Amendment and the Steering Programme in China
The current Chinese constitution was adopted in 1982 to replace the 1978 Constitution.Footnote 49 At first glance, the formal adoption of the 1978 Constitution in place of the 1975 Constitution – a mirror image of the Cultural Revolution – appeared to be an outright repudiation of the radical leftist ideology that had lawlessly pervaded the Chinese society in a decade of revolutionary fever.Footnote 50 In essence, however, the 1978 Constitution was more or less a continuation of the broken 1975 Constitution in terms of substance.Footnote 51 As China's economic reform continued, the 1978 Constitution was eventually replaced by the current 1982 Constitution.Footnote 52
Even so, the original 1982 Constitution was far from driving China towards what it represents to the outside world today. Rather, it was initially seen as a return to the 1954 Constitution.Footnote 53 Dovetailing with the CCP's distinctive interpretation of ‘historical materialism’ to the effect that China entered the early ‘stage’ of socialism after 1949 without becoming a full-fledged communist society, as manifested in the replacement of the 1949 Common Programme with the 1954 Constitution,Footnote 54 the 1982 Constitution initially had no difficulty in reconciling China's preliminary limited economic reform with its socialist ideology.Footnote 55 Yet, as Deng's ‘Reform and Opening-Up’ sped up and penetrated deeper and further, reorienting the backward-looking 1982 Constitution was a question of when, not if. Constitutional amendment was inevitable.
From 1988 onwards, the 1982 Constitution has undergone five rounds of constitutional amendment. When it was first amended in 1988 to introduce private enterprise and to loosen the government's tight control over land use, China's economic situation was markedly different from that in 1982 when the Constitution was adopted.Footnote 56 Yet, by invoking the idea of the ‘primary stage of socialism’,Footnote 57 the CCP managed to reconcile the apparent contradiction between its dogmatic socialist position and the amendment of two provisions in the body of the 1982 Constitution. The 1988 amendment was not so much a fundamental change as a constitutional fine-tuning to accommodate real-world developments.Footnote 58 After all the CCP's ‘stage’ theory of socialism had long provided the Chinese leadership with the ideological grounds for previous policy experiments since 1949.Footnote 59 However, this strategy of adaptation through constitutional fine-tuning proved to be short-lived.
Since its first amendment in 1988, the 1982 Constitution has seen another four rounds of constitutional amendment thus far, in 1993, 1999, 2004, and 2018. As with the 1988 constitutional amendment, the subsequent constitutional amendments rewrote parts of the body of the 1982 Constitution to accommodate real-world needs. To address the needs prompted by the introduction of market mechanisms to China, reforming economic institutions and building legal infrastructure were the main objectives in the three rounds of constitutional amendment from 1993 to 2004.Footnote 60 However, the latest round of constitutional amendment in 2018 stood out from its predecessors. The 2018 amendment was not only different in scale, but it also marked a shift in direction. As manifested in the dozens of rewritten provisions in the body of the 1982 Constitution,Footnote 61 the 2018 amendment focused on consolidating political power and tightening ideological control.Footnote 62 Taken together, although the 1982 PRC Constitution and China's post-1978 economic development are closely interrelated, the 2018 amendment suggests that economic reform is not constitutive of the amendments of the 1982 PRC Constitution.Footnote 63 So what is the constitution of amendment in China?
Despite the marked contrast between the 2018 amendment and its predecessors in their respective emphases, the latest revision in 2018 was not a total deviation from constitutional amendments in the post-1988 period. As with other post-1988 rounds of amendment, the 2018 amendment not only changed the body of the 1982 Constitution, but also substantially rewrote its preamble.Footnote 64 While it is not inconceivable to amend a constitutional preamble,Footnote 65 it is exceptional for it to be substantially rewritten successively in such a way as has been characteristic of the amendments of the 1982 PRC Constitution over the past three decades. Four out of the five constitutional amendments to the 1982 PRC Constitution have centred on its preamble, suggesting preambular changes as the constitution of amendment in China.
Notably, the successive preambular changes to the 1982 PRC Constitution were far from rewriting its lengthy preamble in full. Rather, the focus has constantly been on paragraphs 7 and 10. All four preambular changes included paragraph 7 of the preamble, while paragraph 10 was only left untouched in the 1999 amendment.Footnote 66 The concentration of the preambular changes on paragraphs 7 and 10 is revealing of the role expected of the constitution and its amendments. To see what the emphasis on paragraphs 7 and 10 tells us about China's constitution of amendment, let us take a close look at the preamble to the 1982 Constitution. Comprising thirteen paragraphs, the preamble can be divided into six parts.Footnote 67 First, paragraphs 1 to 6 give an official narrative on China's modern history. Second, paragraph 7 sets out the fundamental principles guiding the direction of the state. Third, the PRC's mission in history is reiterated in paragraphs 8 to 9. Fourth, paragraph 10 provides for the organisation of political forces and designates the CCP as the leading political force. Finally, the fifth and sixth parts lay down guidelines for internal and external inter-nation relations in paragraphs 11 to 12, and the principle of constitutional supremacy in paragraph 13, respectively. As can be seen, the preambular changes to the 1982 Constitution have been focused on the fundamental principles (paragraph 7) and the designated organisation of political forces (paragraph 10).Footnote 68
Scholarship on constitutional preambles has mostly been concerned with their legal status, their role in constitutional interpretation, and their integrative function in constitutional orders.Footnote 69 Scholars typically ask: Are preambles justiciable or merely directive?Footnote 70 Is there any limit on their amendment?Footnote 71 Are they just guidelines that inform constitutional interpretation, or do they constitute applicable constitutional law?Footnote 72 How can they contribute to the constitution's function in facilitating integration?Footnote 73 These questions indicate that, in terms of the legal character of the constitution, the body precedes the preamble.Footnote 74 As regards the integrative function of constitutional preambles, it is mainly attached to their symbolic significance, and this explains why they are not subject to frequent amendment.Footnote 75 Yet the emphasis on preambular changes in China's post-1988 constitutional amendment practice suggests otherwise. The focus on the fundamental principles and designated political forces in the preamble indicates that who carries out the changes set out in the amended body of the constitutional text, and under what fundament principles, is central to constitutional amendment in China. Notably, such preambular changes were made when China's economic reform embraced more and more market-economy elements after the Tiananmen Square massacre in 1989. The emphasis on the preamble in the post-1988 amendments suggests that the 1988 amendment's strategy of adaptation through fine-tuning was untenable in the face of the new political and socio-economic landscape in the early 1990s and beyond. Therefore, the theory of the primary stage of socialism, along with the CCP's other doctrines,Footnote 76 had to be constitutionally incorporated into the fundamental principles in the preamble to steer the transformative reform without risking another political unrest. In China, the preamble precedes the body in terms of constitutional significance, both structurally and normatively. What does this tell us about the constitution and its amendment in China?
In the midst of the Cold War and well before the current resurgence of comparative constitutional law, Karl Loewenstein characterised socialist constitutions as ‘action programmes’ when comparing Western democracies and communist/socialist regimes.Footnote 77 Even though the motherland of socialism has been dissolved for three decades and the Chinese socialist legal order is said to be more or less a variant of authoritarian legality,Footnote 78 Loewenstein's perceptive observation still sheds illuminating light on constitutional amendment in China. As the constitution is meant to steer New China with its action programme, it must be capable of being reprogrammed in tandem with the progression of socialism, reflecting what Loewenstein called ‘constitutional programmatic positivism’.Footnote 79 Seen in this light, the consistent focus of China's post-1988 constitutional amendments on fundamental principles and designated political forces in the preamble suggests that each constitutional amendment marks a new political direction under socialism that needs to be enshrined in the steering fundamental principles in the preamble. Central to the amendments of the 1982 PRC Constitution is the belief that they reflect the direction of national development in China. Being part of the project of constitutional (re)orientation, the constitution of amendment in China is programmatic in character and steering in function.
Sticking to the Rules: Formal Constitutional Change as the Preservation Project in Taiwan
Conventional narratives of constitutional amendment in Taiwan have converged on the following storyline. Democratisation in the 1980s and 1990s marks the watershed in Taiwan's political history. Taiwan was under autocratic rule with the progressive 1946 ROC Constitution virtually suspended in the pre-democratisation era, while the 1946 Constitution has been amended seven times since 1991 in tandem with democratic reforms,Footnote 80 resulting in the current twelve Additional Articles.Footnote 81 Seen in this light, the 1946 ROC Constitution seemed to have been frozen in time before democratisation was set in motion in Taiwan in the 1980s. Such narratives only tell a curtailed story: not only is the life history of the 1946 Constitution obscured, but the constitution of amendment in Taiwan is also missing. To recover Taiwan's constitution of amendment, let us zoom in on the condition of the 1946 ROC Constitution in the pre-democratisation era.
Although Taiwan was placed under KMT-dominated quasi-military autocracy until the 1990s, the state of the constitution in Taiwan during this period was closer to ‘semantic’ than ‘nominal’ under Loewenstein's tripartite typology of constitutions.Footnote 82 Specifically, prior to the enactment of the Additional Articles in 1991, the supreme law governing the land of Taiwan was the 1946 Constitution – only to be simultaneously bolstered and partially suspended by a counter-insurgency emergency regime under the terms of the Temporary Provisions.Footnote 83 Originating as a response to the escalating civil war in China in 1948, the Temporary Provisions replaced the limited regime of emergency powers under the 1946 Constitution with an expanded, loosely regulated state of emergency under the direction of the President.Footnote 84 It is also true that the Temporary Provisions ultimately placed a strong executive power, headed by the President, atop the constitutionally enshrined quinquepartite separation of powers, at the expense of the parliament-consented Premier.Footnote 85 Moreover, by lifting the presidential term limit, the Temporary Provisions paved the way for Chiang Kai-shek's lifelong presidency.Footnote 86 Taken together, the changes engendered by the Temporary Provisions undeniably consolidated the KMT-dominated autocratic regime at the expense of constitutionalism. Nevertheless, Taiwan was far from a state of lawlessness before it set out for democratisation. Rather, the combination of the 1946 Constitution and the Temporary Provisions formed a ‘dual state’ regime in Taiwan before 1991.Footnote 87 Yet the question that remains to be answered is: how did the interplay between the 1946 Constitution and the Temporary Provisions affect the constitution of amendment in Taiwan? To explore this, let us revisit the origins of the Temporary Provisions.
As noted above, the Temporary Provisions were adopted in response to the Communist insurgency in the midst of the Chinese Civil War in 1948. Of particular pertinence to the present discussion, they were enacted in accordance with the amendment procedures of the ROC Constitution.Footnote 88 Notably, as connoted by the title, the Temporary Provisions were not meant to last long.Footnote 89 Moreover, considering the symbolic significance of the then ‘pristine’ 1946 Constitution when the Temporary Provisions were adopted in 1948,Footnote 90 they were intentionally not incorporated into the 1946 Constitution.Footnote 91 Rather, they stood as a constitutional add-on to the 1946 Constitution, with a bland but distinct preamble,Footnote 92 aimed at maintaining the normative semblance of the 1946 Constitution.Footnote 93 As it turned out, the Temporary Provisions failed to quell the Communist rebellion. Instead, they migrated to Taiwan with the defeated Nationalists. In Taiwan, the Temporary Provisions further underwent four rounds of amendment in 1960, February and March 1966, and 1972.Footnote 94 Apart from the controversial provisions as discussed above, the Temporary Provisions were amended in March 1966 and 1972 to allow for democratic parliamentary elections, albeit on a limited scale.Footnote 95 With more democratically elected Taiwanese delegates sitting in the ‘Very Long Parliament’Footnote 96 elected in 1947–1948 under the terms of the 1946 ROC Constitution,Footnote 97 the legitimacy of the ROC government-in-exile appeared to be bolstered under the 1946 constitutional cloak, albeit patched up with the add-on Temporary Provisions.Footnote 98 In sum, the Temporary Provisions were an integral part of the longevity of the 1946 ROC Constitution.
As has been well discussed, the 1946 Constitution has seen seven rounds of (attempted) constitutional amendment since 1991, including the infamous amendment of 15 September 1999, which was later struck down by the Taiwan Constitutional Court (TCC) in 2000.Footnote 99 Taken together, since its migration to Taiwan in 1949, the 1946 ROC Constitution has been formally changed eleven times.Footnote 100 Both the amendment of the Temporary Provisions and the development of the Additional Articles are constituents of the formal constitutional revision of the 1946 ROC Constitution. Only by considering both can the constitution of amendment in Taiwan be properly explained. What is constitutive of the formal revision of the 1946 ROC Constitution in light of both the Temporary Provisions and the Additional Articles?
As their content suggests, the post-1991 constitutional amendments and the Temporary Provisions are different in character. The former is oriented towards liberal democracy, while the latter is instrumental to a constitutionalised dictatorship.Footnote 101 Yet this does not mean that they are two worlds apart with total discontinuity. Rather, in terms of style and process as well as substance, there are traces of continuity between the Temporary Provisions and the Additional Articles.
A quick survey of the two add-ons to the 1946 Constitution shows that the elements of the Temporary Provisions on the state of emergency and the presidential powers, as well as the realignment of the quinquepartite separation of powers, were transposed into the Additional Articles.Footnote 102 Apart from substance, both were enacted in accordance with the amendment procedures of the 1946 Constitution and, more importantly, adopted as addenda to the 1946 Constitution.Footnote 103 Thanks to this last common feature, the original text of the 1946 Constitution has been left unchanged, although its substance was substantially amended. Choosing the ‘appendative model’ for codifying formal constitutional revision was deliberate.Footnote 104 As noted above, the decision to enact the Temporary Provisions in 1948 rather than amend the text of the 1946 Constitution was intended to preserve the latter's pristine status. This decision cast a long shadow over the contentious debate on whether the body of the 1946 Constitution should be directly amended in the lead-up to the replacement of the extraordinary Temporary Provisions by a normal constitutional amendment in 1991.Footnote 105 Given the symbolic significance of the 1946 Constitution as the perceived sacred text of the entire Chinese nation, it was decided that the original text of the 1946 Constitution would be left untouched when Taiwan embarked on its course for democracy.Footnote 106 Thus, the ‘appendative model’ adopted in the enactment of the Temporary Provisions was continued in the adoption of the Additional Articles.Footnote 107
Another distinctive feature characteristic of both the Temporary Provisions and the Additional Articles is that both had their own preambles, suggesting their distinct status from the 1946 Constitution.Footnote 108 Taken together, preserving the formal identity of the 1946 ROC Constitution across different regimes through the adherence to the amendment procedures, the adoption of the appendative model of amendment codification, and the insertion of a separate preamble is characteristic of the formal constitutional revision in Taiwan. The emphasis on the continuation of formal constitutional identity as crystallised in the original and unchanged condition of the 1946 ROC Constitution's text is further attested when the Additional Articles were first enacted to replace the Temporary Provisions in 1991 to pave the way for Taiwan's transition to constitutional democracy.Footnote 109 Despite the contested legitimacy of the National Assembly as part of the notorious ‘Very Long First Parliament’,Footnote 110 it was this body that enacted the Additional Articles to provide for the legal basis for a new parliament, as the National Assembly was the constitutional body that was vested with the power to decide on bills of constitutional amendment.Footnote 111 Notably, Taiwan's transition process from a dual state to a liberal democracy demonstrated remarkable constitutional choreography: although the repeal of the Temporary Provisions and the enactment of the Additional Articles were introduced in two separate constitutional amendment bills, both took effect on the same day and synchronised with the end of the Period of National Mobilisation for Suppression of the Communist Rebellion in 1991.Footnote 112 Thanks to this constitutional choreography, the constitutional codification of Taiwan's transition from the dual state to liberal democracy was concurrent with the virtual replacement of the Temporary Provisions with the Additional Articles. The shell of the 1946 ROC Constitution has thus been preserved even if its interior has been overhauled. In sum, the meticulous conformity with the amendment procedures laid down in the 1946 ROC Constitution has been central to the preservation of formal constitutional identity.Footnote 113 The eleven rounds of formal constitutional revision from the Temporary Provisions to the Additional Articles in Taiwan amount to a project of constitutional preservation through legal continuity.
The foregoing discussion shows two distinct constitutions of amendment in China and Taiwan. Does this distinction suggest that constitutional amendment relies on different bases of legitimacy in China and Taiwan? To answer this question, we first need to find out the respective legitimating ideologies behind China's and Taiwan's constitutions of amendment, a theme to be discussed next.
The Janus-Faced Modernity and the Diverging Roads Towards Amendment Legitimacy
Progress and the Modernity of Constitutional (Re-)Programming: Liberating the Nation with Historical Forces in New China
The frequent revision of fundamental principles in the post-1988 amendments of the 1982 PRC Constitution raises a key question: How can principles be considered fundamental if they are subject to frequent changes? The ease with which fundamental principles have been changed suggests that they are not so much normative precepts unbound by time as epistemic goods that require updating through a continuous learning process.Footnote 114 It follows that fundamental principles in the constitutional preamble take on a cognitive function, serving as a reservoir of ‘privileged knowledge’ required for the steering function of the constitutional programme alongside their prescriptive role.Footnote 115 Seen in this light, the preambular change constitutive of the constitution of amendment in China suggests that improving the fundamental principles through amendment as a result of learning is the key to the steering role of the constitution. This perspective reflects an Enlightenment-inspired belief in progress, which underlies the legitimating ideology of constitutional amendment in China.Footnote 116
To say that a repressive regime of Communist China's kind pivots itself to the idea of progress in respect of the legitimacy of constitutional amendment apparently defies conventional wisdom, to say the least. Isn't repression the antithesis of progress?Footnote 117 We need to look into the twisted liaison between the idea of progress and the pursuit of constitutionalism to better understand how progress can even be associated with a repressive regime. In an essay on the ‘meaning’ of constitutions and constitution-making,Footnote 118 German constitutional scholar Ulrich Preuss attributes the prominence of constitutionalism and the continuing constitutional movements since the late eighteenth century to the desire to liberate society from political repression by means of ‘strengthening mankind's moral competence to govern itself’ with an eye to ‘“the improvement of mankind”’.Footnote 119 Cast in such terms, constitutionalism and progress are joined by freedom.Footnote 120 In the tradition of the Enlightenment, people with freedom are expected to fully release the potential of reason to realise progress through the institutional framework of constitutions.Footnote 121 Yet history has belied such an optimistic – if not naïve – and limited view of progress and constitutionalism. Freedom is not the only liaison between progress and constitutionalism. Alternatively, power displaces freedom as the impetus for progress.Footnote 122 On this view, freedom is the result of, not the precondition for, progress.Footnote 123 Here is where Karl Marx met the concept of constitution in the history of constitutionalism.Footnote 124
To make the long story short, Marx fundamentally realigned the relationship between progress, revolution, and freedom that lay at the heart of early liberal constitution-making movements.Footnote 125 Through his socialist lens, in order to progress to the stage of history where real freedom will eventually materialise, people rely on the leadership of those who have freed themselves from false consciousness with true knowledge. Only when such prescient leaders – or, rather, vanguards that have acquired knowledge of the ‘objective course’ of history through their ‘class-consciousness’ – are in power can society break free from the laws of capitalist relations of production, advancing history to the next stage, where freedom can come to pass.Footnote 126 Revolution is the means of bringing the vanguards to power, thereby enabling historical change by transforming the fundamental law of society – the relations of production.Footnote 127 In contrast to the early constitutional movements that saw progress as a result of the exercise of freedom within the normative framework of the constitution,Footnote 128 Marx suggested that progress brought about freedom under the leadership of a vanguard class guided by the science of history, to which their ‘privileged knowledge’ showed them the access.Footnote 129 This is why not only who leads the insurgency against the targeted repression but also under what fundament principles such insurgency should be conducted has been central to socialist revolutions. On this view, these fundamental principles must reflect the knowledge required for progress and real freedom in the unfolding of history. Only with such knowledge can the historical forces be tapped into to liberate society.Footnote 130
Yet, as history has shown, the Marxist idea of progress, propelled by the revolutionary force, did not lead to ‘instances of progress’Footnote 131 – rather it was zealously moralised and amounted to political messianism, and a repressive one at that.Footnote 132 Today's ‘counter-revolutionary’ generation, living in an era of ‘post-political politics’,Footnote 133 may have a tin ear for this radical idea of progress and other pathological renderings of the idea.Footnote 134 Yet, radical as it may be, Marxist doctrine is very much attached to the idea of progress, which is just one of modernity's many double-edged swords.Footnote 135 Notably, progress and other concepts associated with modernity did exert great influence on Chinese intellectuals in the early twentieth century, when modern China struggled to liberate itself from Western imperial powers.Footnote 136 Both the Nationalists and the Communists were born out of the Chinese quest for modernity when China sought to break free from its status of a semi-colony and join the ‘family of nations’,Footnote 137 only with the Communists turning to the Marxist tradition of radical progress and pursuing what they saw as true liberation through continuing revolution.Footnote 138
As with the Marxist revolutionary tradition of progress, the socialist variety of constitutions is almost forgotten,Footnote 139 or it is curtailed and recast in terms of authoritarianism, leaving out its distinctive legitimating ideological underpinnings.Footnote 140 Yet, as China's constitution of amendment reveals, it is still steeped in the socialist tradition,Footnote 141 despite the cooling of revolutionary fever since the end of the Cultural Revolution and the deradicalisation of the idea of historical progress.Footnote 142 The emphasis on preambular changes in constitutional amendment, particularly regarding fundamental principles and the designated leading political force, give away the character of the 1982 PRC Constitution: it is less a higher law that is supposed to regulate politics normatively than a steering programme that is subject to reprogramming under the guidance of what results from progressive learning – ie, the up-to-date fundamental principles – despite the constitution's embrace of a ‘socialist rule of law’Footnote 143 and its declaration of constitutional supremacy.Footnote 144 As manifested in the constant changes to the fundamental principles, up-to-date knowledge through learning – ie, progress – is believed to be indispensable to the reprogramming of the constitution. In keeping with the socialist tradition, the belief in progress, and a revolutionary one at that, underlies the legitimacy of constitutional amendment in China.Footnote 145
Continuity and Transformation in Amendment: Maintaining Legality on the Road from Republican China to Democratic Taiwan
If revolutionary progress is the legitimating ideology of constitutional amendment in China, continuity seems to be what is believed to be essential in Taiwan, as evidenced by the meticulous adherence to the procedural rules governing amendment under the 1946 ROC Constitution throughout the eleven rounds of constitutional revision. I hasten to add that such a contrast does not imply that constitutional amendment in Taiwan is antagonistic to the idea of progress or modernity. Rather, the emphasis on constitutional continuity by ‘playing by the rules’ marks a break with the radical variety of revolutionary progress, while aligning continuity with the idea of progress through legal institutions in the tradition of modernity.Footnote 146 This brings us to the question: why has constitutional amendment in Taiwan been so deeply shaped by the idea of continuity in the guise of preserving legality? The continuing object of constitutional amendment – the 1946 ROC Constitution – holds the key.
As indicated at the outset, the ROC government – whose continued existence has been the raison d’état of the 1946 ROC Constitution – came to be closely identified with the defeated Chinese Nationalists after being forced to be reseated in Taipei. Although the Nationalists were criticised for corruption and perceived as succumbing to Western powers by their Communist archenemy and liberal detractors, they were nonetheless the first standard-bearers of Chinese nationalism in fighting imperialist Western powers that had reaped manifold concessions and privileges through the numerous ‘unequal treaties’ with the Qing Empire in the late nineteenth century.Footnote 147 Among the privileges and concessions granted was consular jurisdiction, by virtue of which nationals of Western powers were tried not under Chinese law but by consuls of their countries of nationality or other ‘treaty powers’ in China.Footnote 148 As foreigners were not subject to Chinese law or immune from the judicial jurisdiction of China under the imposed regime of ‘extraterritoriality’,Footnote 149 consular jurisdiction and the resulting extraterritorial network of foreign law in China were seen as a symbol of the encroachment of China's sovereignty by imperial powers.Footnote 150 The abolition of consular jurisdiction thus came front and centre in the Chinese broader struggle to break free from the unequal treaties. Notably, consular jurisdiction was initially imposed on the grounds that the Chinese legal system and judicial proceedings were barbaric and fell well below the standards of Western law. This is why remaking the Chinese legal system on the model of Western law topped the reform agenda in the Chinese quest for modernity.Footnote 151
As has been well documented, China was a keen learner of Western law soon after its encounter with Western powers in the nineteenth century. Alongside its embrace of international law,Footnote 152 the enactment of legal codes modelled on Western law became a central focus of China's long process of legal modernisation.Footnote 153 This codification movement continued into the Republican era after the ROC succeeded the Qing Empire.Footnote 154 Meanwhile, the Chinese government, headed by the warlords in Beijing (then Peking) who were battling the then insurgent Nationalists in southern China, continued to battle against the unequal treaties inherited from the Qing Empire. It not only raised the issue at the 1919 Paris Peace Conference following World War I.Footnote 155 The question of unequal treaties was further taken to the 1922 Washington Peace Conference and debated at the League of Nations.Footnote 156 Notably, negotiation was not the only strategy China in its attempt to dismantle the unequal treaties. It even unilaterally abrogated such a treaty with Belgium, prompting the only case involving China as a party in the history of the World Court.Footnote 157 Although China soon returned to the negotiating table, it was persistent in its struggle against Western powers over the unequal treaties.
The Nationalists were as persistent as their rivals seated in Peking during the early Chinese republic's fight against the unequal treaties, including the issue of consular jurisdiction. Before the Nationalist insurgent forces dislodged the rivalling warlords following a military campaign, the Northern Expedition, in 1927, they had already made some inroads into eroding consular jurisdiction by occupying a number of leased territories under their control.Footnote 158 Soon after the unification of China in 1927, the Nanjing-seated Nationalist government reignited the codification movement, aiming to end consular jurisdiction as part of its broader effort to renegotiate the unequal treaties.Footnote 159 The Nationalists’ effort did not come to fruition until 11 January 1943, in the midst of the Second World War, when the United States first unilaterally relinquished consular jurisdiction in China and agreed to replace the Qing-era treaties with a new agreement. The example set by the United States was soon followed by other treaty powers, marking the end of the era of unequal treaties.Footnote 160 To this day, 11 January is celebrated annually in Taiwan as ‘Judicial Day’.
As described above, formal legality – ie, conformity with rules – was at the heart of China's long and winding path toward legal modernisation. Playing by the rules was the necessary condition for China to be recognised as an equal member of the family of nations.Footnote 161 Furthermore, as the Nationalists positioned themselves as the leading force of the Chinese victorious struggle against imperialism, formal legality played a pivotal role in the Nationalist imagination of legitimate rule. In essence, legality is what is believed to be indispensable to the political legitimacy of the Nationalist-led ROC government.
As demonstrated in the preceding discussion of constitutional amendments in Taiwan, the defining feature of Taiwan's constitution of amendment is the insistence on constitutional continuity through adherence to formal amendment rules. To continue to claim the Taipei-seated ROC government as the legitimate government of China vis-à-vis the Communists-steered PRC, the Nationalists spared no effort in preserving the institutional continuity of the reconstituted ROC regime, even though it became little more than a rump government, with many officials and parliamentarians either stranded in mainland China or switching their allegiance to Beijing.Footnote 162 Central to this effort was to maintain the functioning of the ROC Constitution, appended by the Temporary Provisions.Footnote 163
It is worth noting that the Nationalists did not merely maintain the organisational form of constitutional organs; they ensured institutional continuity without abrogating the rules. The solution to the quorum issue, which soon plagued the rump government bodies such as the parliament (including the National Assembly) and the Council of Grand Justices, illustrates the Nationalists-led ROC regime's obstinate adherence to legality-mediated institutional continuity.Footnote 164 Given the rump nature of the reconstituted ROC government in Taiwan, the key state organs mentioned above had struggled to function, as they lacked sufficient members to hold quorate meetings. Yet, in the face of the question of quorum, rather than simply replacing these de facto defunct bodies with new governing entities, the Nationalists demonstrated a steadfast determination to maintain legal continuity in their effort to reopen the relevant state organs in the ROC's new seat in Taipei. In the case of the National Assembly, they fanatically altered procedural rules to ensure its operation, while in the case of the Council of Grand Justices they simply waited for the right moment to replenish it with new appointments.Footnote 165 To simplify the convoluted legal stories of the early ROC government in Taiwan, no rules were broken in such desperate manoeuvres. Formal legality was strenuously upheld. Preserving formal constitutional identity through legal continuity was just a chapter in the saga of the ROC government's fight for legitimacy with formal legality.
Moreover, even if Taiwan is seen as having evolved from being a part of the republican China into a democratic polity on its own terms,Footnote 166 this subtle transformation of political identity has occurred under the same constitutional cloak: the 1946 ROC Constitution.Footnote 167 As noted above, great legal acrobatics were practiced to facilitate the smooth transition from the Temporary Provisions to the Additional Articles in 1991, even if the price was to have this shift midwifed by the very long First National Assembly with little democratic representation.Footnote 168 In democratic Taiwan, legality remains central to constitutional amendment, and the belief in continuity through the law underlies the legitimacy of constitutional transformation in Taiwan.
Conclusion
The foregoing discussion of the characteristics of constitutional amendments in China and Taiwan by no means presents a sufficient condition for the legitimacy of constitutional amendments in these two constitutional realms. Rather, it aims to show that understanding the basis of legitimacy of constitutional amendment requires taking account of what is believed to be indispensable to constitutional amendment in each constitutional order. To uncover the legitimating ideologies of constitutional amendments in China and Taiwan, this article has taken an internal point of view to identify the ‘constitution of amendment’ in constitutional amendments. The persistent character of the constitution of amendment can be indicative of what is believed to be indispensable to a constitutional amendment and thereby underlies its legitimacy in a constitutional order. Thus, instead of focusing on totalising doctrines, the article has looked into the persistent characteristics – whether in substance, process, form, or style – that are constitutive of China's and Taiwan's respective constitutional amendments. By observing these characteristics, this analysis has shown that in China, progress turns out to be the legitimating ideology of constitutional amendment, while in Taiwan, continuity is what has been believed to be essential to the legitimacy of constitutional transformation. Yet, beneath those divergent paths in China and Taiwan lies their shared legacy of the Chinese quest for modernity: both the revolution-progress and the legality-continuity nexuses identified in China's and Taiwan's constitutional amendments are the crystallisation of the Chinese evolving strategy in seeking its liberation from Western imperialism. Navigating between the radical idea of progress and formal legality, China's one hundred years of encounter with modernity not only leave a lasting legacy on both sides of the Taiwan Strait, but also tell a story of constitutional struggle in the prehistory of the Global South.
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