Constitution of the Republic of China
The Constitution of the Republic of China is the fifth and current constitution of the Republic of China, ratified by the Kuomintang during the Constituent National Assembly session on 25 December 1946, in Nanking, and adopted on 25 December 1947. The constitution, along with its Additional Articles, remains effective in ROC-controlled territories and is no longer valid in mainland China since 1949.
Intended for the entire territory of the Republic of China as it was then constituted, it was never extensively nor effectively implemented due to the outbreak of the Chinese Civil War in mainland China at the time of the constitution's promulgation. The newly elected National Assembly soon ratified the Temporary Provisions against the Communist Rebellion on May 10, 1948. The Temporary Provisions symbolises the country's entering into the state of emergency and granted the Kuomintang-led government of the Republic of China extra-constitutional powers.
Following the ROC government's retreat to Taiwan on 7 December 1949, the Temporary Provisions together with martial law made the country an authoritarian one-party state despite the constitution. Democratization began in the 1980s. Martial law was lifted in 1987, and in 1991 the Temporary Provisions were repealed. The Additional Articles of the Constitution was passed to reflect the government's actual jurisdiction and realization of cross-Strait relations. The Additional Articles also significantly changed the structure of the government to a semi-presidential system with a unicameral parliament, which formed the basis of a multi-party democracy in Taiwan.
During the 1990s and early 2000s, the Constitution's origins in mainland China led to supporters of Taiwan independence to push for a new Taiwanese constitution. However, attempts by the Democratic Progressive Party administration to create a new constitution during the second term of DPP President Chen Shui-bian failed, because the then opposition Kuomintang controlled the Legislative Yuan. It was only agreed to reform the Constitution of the Republic of China, not to create a new one. It was last amended in 2005, with the consent of both the KMT and the DPP. The most recent revision to the constitution took place in 2004.
History
Origins
adopted a constitutional system oscillating between a feudal distribution of power and a centralistic autocracy. The idea of a constitutional monarchy, and a written constitution, became influential towards the end of the 19th century, inspired immediately in large parts by the precedent of the Meiji Constitution in Japan. The first attempt towards constitutionalism in China was during the Hundred Days' Reform that took place in 1898 by the young Guangxu Emperor and his reform-minded supporters, but a coup by conservative monarchists loyal to Empress Dowager Cixi ended this effort. The same faction, however, eventually adopted a policy of transitioning towards constitutionalism. However, the first constitutional document was only published in 1908, and the first constitutional document with legal force was not implemented until 1911, after the eruption of the 1911 Revolution, which led to the end of the Qing dynasty the next year.Colonial history
As a result of the First Sino-Japanese War, the Treaty of Shimonoseki granted Japan full sovereignty of Taiwan. Chinese cession of the Taiwanese Prefecture would facilitate the island's introduction to constitutional regimes: Japan had promulgated the Meiji Constitution six years prior. Thereafter, Japanese colonization stoked fierce debates surrounding the applicability of the Meiji Constitution towards colonial governments. Although the Meiji oligarchy declared that their constitution would not be applied to colonial possessions, Taiwanese people asserted that their naturalization as Japanese citizens guaranteed rights enumerated in the Meiji Constitution. These legal debates culminated in granting Taiwan special legal status—Taiwan nominally became governed by constitutional rule. However, constitutional rights were continuously violated by the Japanese military and state police. Representative institutions were not constitutionally installed. Likewise, Emperor Meiji granted the majority of executive and legislative powers to the Governor-General of Taiwan, an appointed military leader.The 1920s saw the rise of indigenous political movements as Taiwanese activists sought local autonomy and greater political freedoms. From 1921 to 1934, political activists attempted to petition the Imperial Japanese government to establish Taiwanese parliamentary assembly, which was met with little success. Conversely, the formation of the Taiwan Local Autonomy Alliance in 1930 eventually contributed the limited city and township council elections in 1935. Caving to these political movements, the Japanese colonial government established councils to integrate public opinion with the state. Half of the council members were to be directly elected by voters while the remaining half of council members were to be appointed by the government. November 22, 1935, marked the landmark day where Taiwan's autonomous regional bodies held elections. Only adult males of higher socio-economic status were eligible to participate.
The Meiji Constitution would not be Taiwan's last constitutional imposition: Taiwan would face another constitutional crisis when China's KMT government fled to Taiwan during the Chinese Civil War. According to Taiwanese legal scholar Yeh Jiunn-rong, these constitutions would impart a lasting legacy on Taiwan's constitutionalism: they inspired constitutional indigenization with their disparate frameworks, serving as a foundation for Taiwan's eventual constitutional identity. Even today, remnants of Japanese colonialism exist within Taiwan's political systems. Up until 2005, Taiwan retained its single non-transferable voting system, a testament to the Meiji Constitution. Originating in Japan, the SNTV system grants voters one vote in multi-member districts. Unlike single transferable voting, votes are non-transferable. Thus, surplus votes from one candidate cannot be transferred to other candidates. This electoral system lasted in Japan until 1994, yet persists in a limited form in Taiwan.
Early attempts of Chinese constitution
The Provisional Constitution of the Republic of China was drawn up in March 1912 and formed the basic government document of the Republic of China until 1928. It provided a Western-style parliamentary system headed by a weak president. However, the system was quickly usurped when Song Jiaoren was assassinated by the orders of President Yuan Shikai. Song was the leader of the KMT who was to become prime minister following the party's victory in the 1912 elections. Yuan regularly flouted the elected assembly and assumed dictatorial powers. Upon his death in 1916, China disintegrated into warlordism and the Beiyang Government operating under the Constitution remained in the hands of various military leaders.The Kuomintang under Chiang Kai-shek established control over much of China by 1928. The Nationalist Government promulgated the Provisional Constitution of the Political Tutelage Period on 5 May 1931. Under this document, the government operated under a one-party system with supreme power held by the National Congress of the Kuomintang and effective power held by the Central Executive Committee of the Kuomintang. In Leninist fashion, it permitted a system of dual party-state committees to form the basis of government. The KMT intended this Constitution to remain in effect until the country had been pacified and the people sufficiently "educated" to participate in democratic government.
Drafting process
The constitution was first drafted by the Kuomintang as part of its third stage of national development, it established a centralized republic with "five branches of government". The constitution traces its origins to the end of the Second Sino-Japanese War. The impending outbreak of the Chinese Civil War pressured Chiang Kai-shek into enacting a democratic Constitution that would end KMT one-party rule. The Communists sought a coalition of one-third Nationalists, one-third Communists, and one-third other parties, to form a government that would draft the new constitution. However, while rejecting this idea, the KMT and the CCP jointly held a convention at which both parties presented views. Amidst heated debate, many of the demands from the Communist Party were met, including the popular election of the Legislative Yuan. Together, these drafts are called the Constitutional Draft of the Political Convention. Professor John Ching Hsiung Wu, Vice-chairman of the Constitution Drafting Commission, was the principal author of the text.The Constitution, with minor revisions from the latest draft, was adopted by the National Constituent Assembly session on 25 December 1946, in Nanjing, promulgated by the National Government on 1 January 1947, and the fifth and current Chinese constitution officially went into effect on 25 December 1947. The Constitution was seen as the third and final stage of Kuomintang reconstruction of China. The Communists, though they attended the convention, and participated in drafting the constitution, boycotted the National Assembly and declared after the ratification that not only would they not recognize the ROC constitution, but all bills passed by the Nationalist administration would be disregarded as well. However, due to their showing in the election their boycott did not prevent the Assembly from reaching quorum and thus electing Chiang Kai-shek and Li Zongren as president and vice president respectively. Zhou Enlai challenged the legitimacy of the National Assembly in 1947 by asserting that the KMT hand-picked its members 10 years earlier, and thus the Assembly could not be the legal representatives of the Chinese people.