The "contempt of the Legislature" battle wasn't a difference of opinion -- the KMT was just wrong

I know this painting at New York's Whitney Museum has a name, but I prefer to call it "Speaker Han" (the photo is mine). 

As an American, I see a lot of re-framing battles over basic rights re-framed as mere "differences of opinion" -- as though the rights and freedoms that are foundational to democracy are as subject to personal interpretation as, say, pizza toppings. I've seen blatant power grabs dismissed as as mundane, non-threatening policy platforms. 

I was similarly dismayed to watch the KMT, handed the eensiest bit of power after eight years lost in the woods, engage in a similar power grab with its attempt to expand legislative powers -- dismayed, but not surprised. This is how the KMT are. It's in their party's DNA to consider themselves the rightful leaders for whom democracy is an annoying inconvenience. 

If you're thinking this is also one of the hallmarks of fascist ideology, well, yes -- it is. 

And yet, as in the US, the KMT's actions garnered a fair amount of defense, as though the majority coalition has the right to a naked power grab simply because they form a majority, and anything they do is just a different policy position. I watched TV news and various commentators deride the DPP for not understanding that they no longer control the legislature, as though they had no reason or right to oppose expanded legislative powers.

As it turns out, the Constitutional Court disagrees: most of the legislature's expanded powers were deemed unconstitutional. 

Here's a quick summary of the ruling: 

The president can give a "State of the Union" address -- which was always a non-binding right the president has had, so no surprise there. It's not typically done, although I've started thinking of the Double Ten speeches as performing a similar function, but it was always a possibility.

However, the legislature can neither compel the president to do so, nor demand a a specific time or date for such an address. They cannot require the president to undergo an immediate question-and-answer session.

Also kept intact was the legislature's right to conduct investigations. However, that was never really in question: in 2004, constitutional interpretation #585 outlined the investigative powers of the Legislative Yuan very clearly -- they have them, when such investigations pertain directly to matters under their purview. 

If the legislature wants to investigate a matter already being investigated by the Control Yuan, they must "enter into negotiations" with the Control Yuan to do so, and cannot interfere with powers given to other branches of government. 

Also thrown out was the idea of "contempt of the Legislature", which would have allowed the legislature to take on judicial powers, punishing anyone it found to be in "contempt" with fines. "Contempt" was poorly-defined, but included refusing to appear, refusing to answer questions (whether or not sensitive information such as matters of national security would be protected was left unclear), providing false answers (with the legislature again taking judicial powers to determine what would constitute a falsehood) or "counter-questioning".

Just about anyone could be called in for questioning, from government officials to military leaders to individuals. In theory, this included everyone in Taiwan. Quite possibly, it gave the legislators the right to drag in anyone they wanted, from TSMC C.C. Wei to a journalist whose writing they don't like, ask a bunch of questions, determine that several answers they didn't like were actually "false" and punish them with massive fines for each individual "falsehood". 

Some might call this interpretation of the law 'fearmongering', but it really was that shoddily written, and the courts clearly agree.

That's all gone now, which means that investigations opened under these expanded powers, such as the egg import "scandal" (there is no scandal) and Mirror Media will likely have to be halted.

I feel kinda bad for people who defended these laws as something within the KMT and TPP's rights, simply because they'd done well in an election, or calling the DPP "authoritarian" for opposing it. You know, as though any law the government passes is ethics-neutral or is acceptable simply because it passed.

If the Constitutional Court says they never had the right to expand legislative powers, then they never had the right. Defending their power grab was foolish -- it amounted to defending unconstitutional actions. Bad look. Not demure, not mindful. 

So, to everyone who insisted the KMT was acting within bounds and not going against the ROC constitution that they claim to hold so dear, I hate to say I told y....oh wait, no I don't. I freakin' love it. I told you so!

The DPP was right to put up a spectacular fight against it. On this matter, they were always right. That they are a legislative minority is irrelevant.

This specific battle seems to have been won, but it's unlikely that the fight is over. Back in September, the KMT began taking aim at the judicial system, first criticizing Lai's judicial appointees. Maybe I'm reading too much into this, but calling judges "thugs" sounded a bit like, "nice branch of government you got there. It'd be a shame if, say, the legislature mucked that up." In other words, "you'd better not find our expanded powers unconstitutional or we'll make life hard for you."

Since July, they've been trying to push through reforms to the constitutional court. This is important because without an executive veto, the primary check on the legislature is that very court. (Meaning criticisms that the executive branch has too much power in Taiwan show a fundamental misunderstanding of how the balancing act works). 

These proposed changes would raise the number needed to reach a decision from half to two-thirds, based on the set number of 15 justices -- not the total number of incumbent justices (the actual number of sitting on the court may vary as judges step down or pass away). This would mean at least ten judges would need to be present to reach a decision, with seven in favor. 

However, seven justices are set to step down soon, and there is no mechanism for temporary appointees or term extensions. New judges are approved by the Legislative Yuan (a process few disagree with). If seven out of fifteen justices are stepping down, that leaves eight, not ten. The constitutional court would at that point be unable to function.

All the legislature has to do is refuse to confirm Lai's judicial nominees, and blammo! The constitutional court cannot issue rulings, and the legislature essentially has no check on its power.

The Judicial Reform Foundation has pointed out that proposing such reforms in the midst of a bruising battle over the legislature expanding its own powers is itself threatening behavior -- if you stop us, we'll bind and gag you. 

Like Americans who convince themselves that Trump's blatant fascism is just normal campaigning and Project 2025 wouldn't constitute a massive right-wing power grab, those who consider the Legislative Yuan's actions in Taiwan to be a part of normal democratic functioning are, well, deluded. And those who think the DPP are the power-grabbers are just full of themselves.

Legislature erupts in chaos, the KMT still sucks, and the spark of fresh resistance

Lawmaker and activist Puma Shen gets pushed off a rostrum head-first by KMT opponents

First, I just want to acknowledge that I haven't been blogging very much. I know. I've had other writing projects, but beyond that work is both a challenge and a treadmill. By that I mean it both requires creative energy (fantastic) but also feels a bit insurmountable (not fantastic). At least I'm happy with where I am career-wise, which I wouldn't have said six months ago. 

I felt a bit knocked out of my blogging stupor on Friday, when a fight broke out in the Legislative Yuan over a proposed bill to expand the powers of said legislature. Not only is the bill deeply undemocratic, but the method by which the majority coalition -- they wouldn't call themselves a coalition, but they effectively are one -- attempted to pass it. 

The sum of it: the KMT, with the TPP as their lapdogs, are trying to pass a bill that would require the president to give an address before the Legislature every year, and be subject to immediate questioning after. More chillingly, it would expand the legislature's ability to conduct investigations -- they already have some authority, such as access to documents -- and introduce the concept of "contempt of the Legislature" which would work like this:  

Those who refuse a demand by the Legislature or delay in responding, conceal information, or provide false statements to the Legislature during an investigation, inquiry, or hearing or when it reviews documents can be fined or, if serious, seen as "contempt of the legislature," according to the KMT lawmakers' bill. 

This would be a criminal offense, and refusing to appear or accused of lying to the Legislature would be punishable by fines or jail time. Those required to comply would not only be government entities, but private ones as well. 

The issues, legal scholars and others note, is that it's not clear where that power begins and ends. For example: 

Lin Chih-chieh (林志潔), a legal professor and a DPP legislative candidate in the January election, warned at a public hearing that if the bills passed, the Legislative Yuan would be able to demand the presence of, for example, TSMC founder Morris Chang (張忠謀) and accuse him of contempt of the Legislature if he refused to attend.

The Legislature could also ask TSMC or other enterprises to provide sensitive information related to their commercial secrets, Lin argued.

(I'm quoting at length from Focus Taiwan as their articles don't remain publicly available for long.)

What's more, what constitutes "lying", "delay in responding" or "concealing information" is not particularly clear. How it will be determined that someone called to testify has done these things is not, as far as I know, defined in any known way. The problem here should be obvious: with no clear, impartial mechanism to determine what constitutes a delay, a lie or concealment, who's to say what might be called, for example, a "lie".  Anyone can insist anyone testifying has "lied", threatening criminal punishment, and it's extremely unclear how that power might be wielded fairly. 

People whose testimony (or lack thereof) dissatisfies legislators -- again, this whole thing should chill you to the bone -- can be sent to court 'to impose a sentence' (it's unclear whether the court can overturn the legislators' decision). In other words: 

Furthermore, how contempt of the Legislature is determined, by whom, and the criminal elements of contempt of the Legislature are not explicitly stated in the KMT proposal. Critics believe that if the legislator does not like the content of the official's answer to the question, does not like their attitude, or "interrupts" the official who is answering the legislator's question...under a loose determination, it may be possible that legislators will use their own subjective desires to imprison the official under questioning through court resolutions.

(Translated from Initium Media)

Does this remind you of any other period in Taiwan's history? Perhaps a period of several decades, under which the government could pull you in for questioning and jail you if they didn't like your answers, using ill-defined powers with essentially no oversight? 

I don't think that the Legislative Yuan is going to start mass murdering dissenters or anything like that, but if this doesn't give you Big White Terror Energy...it should.

This lack of clarity seems very much by design: the bill bypassed a line-by-line reading as well as an article-by-article discussion, and according to Initium Media, all versions of the bill from the KMT and TPP were sent to committee while all DPP versions and proposals were blocked. Laws in Taiwan have a period of discussion (sometimes called 'freezing') where parties are meant to negotiate and come to a consensus on new legislation, which is between one and four months -- four months is the norm, but the 'freezing' of some crucial legislation may be shorter. In that period, the KMT refused to engage in any substantive negotiation or discussion with the DPP on this bill.

Because there was no line-by-line reading, and all versions were sent to committee (if I'm reading this correctly), it's unclear which version would have passed the vote on Friday. Not all versions are available publicly, in fact, I'm not even sure if the legislators themselves know what's in the bill. This is very wrong: in general, new legislation under consideration should be publicly available, discussed in detail by lawmakers, and the final version that goes to a vote known. 

It's also worrying that how the bill would play out against previous Constitutional Court rulings, specifically ruling #585, which states that the Legislative Yuan has the power to conduct investigations related to its own functioning but not beyond that: 

Under the principles of separation of powers and checks and balances, the scope of the targets or matters subject to the Legislative Yuan’s investigative power does not grow unchecked. The matters to be investigated by the Legislative Yuan must be substantially related to the exercise of its powers under the Constitution. And, in addition, whenever a matter is related to the independent exercise of powers by an organ of the State that is guaranteed by the Constitution, the Legislative Yuan may not extend its investigative power to such a matter.

This interpretation already gives the Legislative Yuan the power to 'compel' testimony on matters under its jurisdiction, but it's unclear if attaching criminal penalties to this would be within the scope of the interpretation. In addition, unlike other countries that have contempt of Congress or Parliament laws, Taiwan already has an investigative body, the Control Yuan.

This body is in charge of impeachment, censure and audit. If they already have the power to investigate government officials, why exactly does the Legislative Yuan also need this power? Indeed, according to Interpretation #585 above, to take that power might well interfere with the "independent exercise" of the Control Yuan, making it unconstitutional. 

Of course, we don't know exactly which powers this will grand the Legislature and whether they step on the Control Yuan's toes, because we don't know what's in the bill! Even the Taipei Bar Association has weighed in with concerns about the bill. It's Bad News Bears, you guys, 

It's pretty clear that the goal of the legislators is to increase their own power during a term when the KMT has a legislative plurality, but the DPP has the presidency. It's not about punishing those who lie -- KMT legislators lie all the time -- and not really about filling a much-needed gap in the government's ability to function, as there's an investigative body that already does this. In other words, it's exactly what critics have called it: a power grab.

If this seems reminiscent to you of some of the black box politics characteristic of the Ma Ying-jeou era, that's because it is. The same sort of 'let's push this through and not make it entirely clear what the legislation entails' is the exact sort of authoritarian bullshit attitude that helped spark the Sunflower Movement in 2014. While the details differ, broadly speaking, the strategy feels quite similar to the attempted passage of the Cross-Strait Services and Trade Agreement (CSSTA or 服貿) in that year. 

With the KMT more or less back in power in the Legislative Yuan, it's not surprising that they are exactly who they've always been. 

Friday was voting day for the bill, and anyone could have predicted that fights over it would break out in the Legislature. Again according to Initium Media, the clause requiring the president to address the Legislative Yuan and then answer questions (which is somewhat unprecedented in ROC history) was passed by a show of hands -- meaning the names of those voting for and against were not recorded as is custom -- but due to the physical altercations, all other parts of the bill have yet to be dealt with. 

I'm not sure exactly why, but the violence in the Legislative Yuan on Friday somehow seemed more serious, or touched a deeper nerve, than scuffles I've read about previously. To me, the three most notable instances of scuffles or outright violence were DPP Legislator Kuo Kuo-wen (郭國文) grabbing the documents and sprinting out of the legislative chamber with them, which, to be clear, that guy rules.

Chung Chia-pin (鍾佳濱) of the DPP tackled the KMT's Chen Ching-hui (陳菁徽) while both were on the podium; Chung claims he slipped on a piece of paper, and from the video evidence, that seems likely. Notably, in some reports, pan-blue mouthpiece TVBS, despite offering a pretty awesome metal-lite background to the footage, seems to have edited out the part where Chung fell. 

Finally, DPP Legislator, democracy activist and founder of Doublethink Lab Puma Shen (沈伯洋) was  pushed off the rostrum and landed on his head. Shen was hospitalized along with five other lawmakers, though his condition at the time appeared to be the most severe. 

As of today, Shen appears to be in recovery -- or at least, he's conscious -- telling the public that the TPP's three-point statement on the issue is, essentially, three lies, and that they are the ones in "contempt of the Legislature". 

According to CNA, the TPP claims that only some reforms were on the agenda for that day, and the "contempt of the Legislature" was not. I'm honestly unclear on this point, but Shen claims it's wrong. Second, the TPP claims that the DPP either "didn't understand" the timing of the discussions, or put forward excessive motions to adjourn so no discussions could take place. Shen counters that in truth, the DPP called for adjournments because the KMT and TPP wouldn't discuss the bill, and accuses them of confiscating or dismissing DPP proposals, so what could the DPP do but resist the process? Finally, the TPP claimed that the 'show of hands' method of voting is a legal and recognized method. Shen points out that the vote counts are still unclear as a result -- some of them don't match up -- and as the tools to register names of who voted for what were available, intentionally not using them is not a good method. 

For anyone thinking "well that's just majority party strategy", the DPP as far as I can remember never did this to the KMT in eight years of having control.

In the aftermath, the DPP's Chung has apologized to Chen (the woman who was tackled), and clarified that he was also in pain from the fall. The KMT, as far as I can tell, has not apologized for injuring Shen or anyone else, with caucus whip Fu Kun-chi daring the DPP to sue the KMT over their actions. 

Not to get too biased or anything, but that corrupt sex pest really is a massive wet sack of steamy garbage juice.

Fu has also called the DPP "thuggish", despite arguably the worst injury being sustained by a DPP legislator. That's to be expected, though, the KMT loves characterizing the DPP as ignorant rednecks who could not possibly wield power with the grace and authority of the educated KMT. It's a also a time-honored tactic around the world used to discredit activist movements. Want to turn the public against a group? Call them thugs!

Of course, the DPP weren't the ones who terrorized Taiwan for decades under the White Terror and Martial Law dictatorship like thugs.

Anyway, calling anyone "thuggish" is pretty rich coming from, yet again, a corrupt sex pest. 

Speaking of the old dictatorship, the KMT also accused the DPP of being "used to monopolizing power". Hmm, let's review: which party imposed decades of Martial Law so heinous that it made the Japanese colonial era look like a paradise in comparison? Sent dissidents to Green Island, tortured them and killed them, claiming they were all "communists" (not all were, and regardless it shouldn't have been a crime in the first place)? Engaged in mass killing sprees after 228? Let the dictator's son run the secret police, deciding more or less on personal whims who lived and who died? 

Which party ruled Taiwan with violence for so long, and so horribly, that the people started organizing to force it to end? Which party's crimes against the people are now memorialized in prisons-turned-museums on Green Island and in New Taipei? Was that the DPP?

Which party, out of approximately thirty years of democratization, has held a majority in the Legislature for twenty of them (so, about two-thirds), even when the opposition had the presidency? Was that the DPP? Which party engaged in legislative chicanery so preposterous that a bunch of students occupied thei chamber and rallied many, if not most, Taiwanese to their cause? Which party's president is leaving office with unprecedented popularity, as opposed to her KMT predecessor who wishes he could have hit double digits?

So, which party again can we perhaps accuse of trying to monopolize power? Because it sure as hell doesn't look like the DPP.

With the inauguration tomorrow and fresh deliberations over the bill set for the day after, it's unclear what's next. I have noticed, though, that with the old KMT tactics of black-boxing their trash and calling the DPP "thuggish" for resisting, that perhaps a spark of that old civil disobedience is coming back. 

It's not that protests simply stopped after Tsai took office. There's been a Panay Kusui-led protest encampment in 228 Park for a very long time, focused on Indigenous land rights. There's a laor protest more or less every year, though they don't have much staying power. There were the marriage equality rallies. 

But it sure does feel like civil society has gone somewhat quiet in these years. I don't think I've attended a protest/rally since marriage equality (though, to be clear, my health took a tumble during the pandemic as my career picked up, so often I just haven't got the time). Many have commented that younger Taiwanese, now almost a generation removed from the Wild Strawberries and Sunflowers, and two generations from the Wild Lilies, don't seem to have that same activist spirit, aren't worried about China (and thus care less about the KMT's foreign policy of basically selling out Taiwan) or aren't the angry young protesters who helped bring Tsai to power in 2016 -- in fact, they're not necessarily enamored with the DPP at all. 

On the one hand, I've kind of noticed this, too. The desire to go out there and fight for something better hasn't seemed as alive of late. Perhaps it's because President Tsai, unlike her predecessor, actually did a good job leading Taiwan -- and I do think, with some criticisms and imperfections, that she did. Perhaps they're just used to the DPP being 'in power', and the people with the power are usually not the ones that inspire the youth. 

But now KMT avarice is laid bare once again, which was always going to happen once they were given national-level power again. I'm not sure why so many people didn't see it coming, and while it's certainly not a good thing, maybe the old fire will come back. Maybe the next generation will see once again what utter rapacious dipshits their parents voted for, and stand for something better. 

Spontaneous protests broke out outside the Legislative Yuan on Friday night, and on Saturday Internet celebrity and commentator Four-Pronged Cat (四叉貓), known for infiltrating and subverting KMT protests, held a "pilgrimage" to the street below the home of KMT legislator Hsu Chiao-hsin (徐巧芯). She's the one who pulled out a musical instrument during the fighting and played the ROC national anthem -- honestly, don't ask. Apparently, people passing Hsu's house deemed to be protesters had been interrogated or otherwise documented by police, which frankly feels quite undemocratic. For a small-scale action, it's still impressive that, apparently, hundreds of people showed up. 

These are small numbers by the Taiwan protest standards I'm used to, but it feels like a step in the right direction as we head into the unknown territory of a third-term DPP presidency, and a KMT-led legislature that seems more cupidinous than ever. We're going to need that vim and vigor from everyone, not just Gen Z Taiwanese, to do something about it.

The ROC constitution is not the argument winner you think it is

Continue?

In a spin-off of my last post, I wanted to talk some more about the ROC constitution.

In that post, I described Taiwan independence bait & switchers in that post: people who talk about Taiwanese sovereignty as though it doesn't already exist, but make those statements in relation to China, not in relation to any sort of discussion or debate happening in Taiwan. When it's pointed out that Taiwan is indeed independent of that China, they snottily retort that Taiwan claims to be the "Republic of China", and therefore isn't independent from...that?

Nevermind that they began by talking about the PRC, and the ROC and PRC are different governments regardless. Both governments fundamentally acknowledge this: Taiwan now openly states it, and the PRC talks about how "Taiwan will be ours", which is an admission that Taiwan is not currently theirs.

I mentioned then that a lot of these people will point to the Republic of China constitution, insisting that its wording proves that Taiwan considers itself "part of China", if not the "real China" which claims the territory currently governed by the PRC. 

This is arguably false. I've talked about this before, but have more to discuss, and want to zoom in a little more. As Brendan likes to say, people who want you to swallow China's (or the KMT's) narrative on Taiwan don't want you to learn more about Taiwan. Their arguments work better if you remain ignorant. Those of us who advocate for Taiwan welcome everyone to learn more: the more you learn about Taiwan, the clearer it becomes that it isn't part of China, and doesn't want to be. 

In the spirit of "learning more", I'll be drawing on a useful Twitter thread that deserves a more permanent discussion. 

What are "existing territories"?

In the thread, Drew points out the oft-cited Article 4 which discusses the "borders of the Republic of China": 

The territory of the Republic of China according to its existing national boundaries shall not be altered except by resolution of the National Assembly.

I've discussed this as well -- the article never clarifies exactly what the borders are, and that matters -- but Drew takes it further. He points out that the vagueness was intentional, as the boundaries at the time were indeed somewhat fluid and the language of the constitution had to account for that without any change potentially invalidating the document. That's not just his opinion: he's quoting the Council of Grand Justices:

Article 4 of the Constitution provides: "The territory of the Republic of China according to its existing national boundaries shall not be altered except by resolution of the National Assembly." Instead of enumerating the components of national territory, a general provision was adopted, and a special procedure for any change of national territory was concurrently provided. [Emphasis mine]. It is understandable that this legislative policy was based upon political and historical reasons.

A years-old Taipei Times piece offers a clearer interpretation of this fairly terse ruling: 

First, Article 4 has been ruled “non-justiciable” by the Council of Grand Justices. Asked whether Mongolia was still a part of ROC territory, the council in 1993 issued Interpretation No. 328, which ruled that the legislative intent of the term “inherent/existing” was specifically to avoid setting down precise boundaries, since the areas controlled by the ROC in China at the time were continually shifting with the tides of the Chinese Civil War. The interpretation thus held that the phrase is a political question that cannot be assigned any fixed legal definition. The practical impact of this ruling is that it is legally impossible to “violate” Article 4, since anyone could assert any notion of “inherent/existing national boundaries.”

Essentially, "non-justiciable" means that the Council of Grand Justices has declined to rule on the meaning of Article 4, as the wording is intentionally vague, which is a fundamentally political issue. Thus, it can mean anything to just about anyone. Which, of course, indicates that it means just about nothing at all.

Article 4 is technically no longer in force, but the same wording ("existing national boundaries") is used in the updated additional article, so I'm applying these ideas to both. There's more to discuss here; it will come up again below.

In other words, the judiciary branch of the Republic of China refuses to enforce any legal interpretation of that article, including that it must include territory currently governed by the People's Republic. At this point, the government that currently runs Taiwan has not actively claimed "mainland China" for decades, and continues to decline to comment on any such claim.

And lest you think that this was some sort of partisan judge hack job: in an otherwise jibberish article, even the KMT praises the wisdom of this ruling! I suspect it was meant to be a bit of a smack at the DPP, who had sought to shed new light on what the constitution means to modern Taiwan by getting the judiciary branch to clarify the so-called territorial claims. However, it ended up being a boon to Taiwan advocates: if the wording of "existing national boundaries" is so vague and political that it cannot be meaningfully interpreted by the court, then it can't really be meaningfully be interpreted by anyone. Therefore, it is not meaningful.

Chen Shui-bian is quoted by the Financial Times (and here, the Mainland Affairs Council) pointing out that the question of dubious claims such as Outer Mongolia aren't even the point -- when the Republic of China was founded, Taiwan was a colony of Japan. A 1936 early draft of the constitution did not include Taiwan, which further shows that these "existing borders" are indeed malleable. 

In addition to the Grand Justices, we've now had two presidents of the Republic of China who have insisted that it is an independent country and does not claim the territory of what the world considers to be "China". Three, if you count Lee Teng-hui and his "state to state relations" (and I do). Every elected leader of Taiwan except one has been clear on this. How many government officials clarifying this will it take before people stop making this dead-end argument?

Let's look at the last part of Article 4. I occasionally hear these "Checkmate, Splittists!" commentators say that this needs to be changed by a referendum, but that's not actually true. 


The Additional Articles

The original article states that it can only be amended by the National Assembly, although the amended article, which dates from the early 2000s, gives that power to the Legislative Yuan. The National Assembly no longer exists, and hasn't since 2005, when the replacement article took effect. 

As Bo Tedards pointed out all those years ago, from the Taipei Times link above: 

Second, Article 4 is no longer in effect. It was replaced in 2000 by paragraph 5 of Additional Article 4, which itself was amended in 2005. Although Additional Article 4 contains almost the same phrase, “the territory of the Republic of China, defined by its existing national boundaries,” surely the use of the term “existing” in 2000 or 2005, without qualification, does not mean “existing as of 1947.”

For the sake of comprehensiveness, here's what that paragraph says:

The territory of the Republic of China, defined by its existing national boundaries, shall not be altered unless initiated upon the proposal of one-fourth of the total members of the Legislative Yuan, passed by at least three-fourths of the members present at a meeting attended by at least three-fourths of the total members of the Legislative Yuan, and sanctioned by electors in the free area of the Republic of China at a referendum held upon expiration of a six-month period of public announcement of the proposal, wherein the number of valid votes in favor exceeds one-half of the total number of electors.

The original additional articles to the constitution were promulgated even earlier than that, in 1991. The early-noughts replacement to Article 4 does differentiate between the "territory of the Republic of China" and "the free area of the Republic of China", but I find it hard to believe that many Taiwanese in 2005 -- one year before I moved to Taiwan -- truly believed that their votes from Taiwan could or should have any bearing on, say, Tibet or Mongolia.

Perhaps a few centenarians and some KMT diehards clung to this, but in 2005 most people in Taiwan identified as either purely Taiwanese or both Taiwanese and Chinese. Almost nobody believed themselves to be purely Chinese, a downward trend that began in the mid-1990s. There's no way the general electorate in 2005 still had some inherent notion that unification was desirable. Not even the pro-China Ma Ying-jeou, elected a few years later, dared to say otherwise at the time.

It's difficult, then, to disagree with Tedards. If the sentence "existing national boundaries" was written in 2005, and the Council of Grand Justices has already said it's a vague, political phrase that takes into account the possibility of changing boundaries, then the boundaries referenced in the 2005 replacement of Article 4 can only sensibly mean the Republic of China as it existed in 2005.

Why do the additional articles exist?

When the original additional articles went into effect, President Lee described the re-defined relationship with China as "state to state" or "special state-to-state" relations. Even China saw this move as a blatant shift toward "Taiwan independence". Here's a nice long turducken quote from my previous post on the topic (linked above):

This article is extremely biased to the point of affecting the quality of the scholarship, but it offers up a real quote from Lee and a taste of how angry China chose to be:

According to the transcript released by Taipei, Lee said that since 1991, when the ROC Constitution was amended, cross-strait relations had been defined as "state-to-state," or at least "a special state-to-state relationship." Cross-strait relations, he maintained, shall not be internal relations of "one China," in which it is a legal government vs. a rebel regime, or a central government vs. a local one. Lee's controversial statement, not even known beforehand by Su Chi, Chairman of Mainland Affairs Council (MAC), sent shock waves to Washington as well as Beijing. [Note: Su Chi is the same guy who fabricated the "1992 Consensus" well after 1992].  

For Beijing, Lee Teng-hui's "two-state" theory was identical to the claims by Taiwan independence forces, that treated Taiwan and the mainland as two separate states. Lee had completely abandoned the unification guidelines of 1991, not even paying lip service to the one-China principle. The spokesman of the State Council's Taiwan Affairs Office criticized Lee for playing with fire....In Beijing's eyes, Lee had made an open and giant step towards independence. The "state-to-state relation" theory went beyond the limit of "creative ambiguity" around the one-China principle and represented a major shift towards de jure independence. 

As Drew points out, Chen Shui-bian extended the "special state-to-state" theoretical framework, later calling the relationship with China "one country on each side". Although Ma Ying-jeou represented a break from this clear trajectory, Tsai brought it back into fashion, calling Taiwan "independent" (also linked above). In other words, since democratization there has been exactly one president of Taiwan who has conceived of Taiwan's relations with China as anything other than "state to state", and this framework is directly linked to the constitution as it existed after 1991. 


Miscellany: Tibet, Mongolia and the Provincial Council

The ROC constitution tryhards don't give up easily; they'll often point to mentions of Tibet and Mongolia in the document. To that I say: so what? The Mongolian and Tibetan Affairs Commission was dissolved in 2017/2018, and most mentions of those old claims are either tied to rules regarding the National Assembly which no longer exists, or play no meaningful role in the current government.

The Provincial Council was also dissolved -- you need to use the Wayback Machine to access its old website. Because the constitution stipulates that something like the Provincial Council must exist, a government worker technically fills the lead role, but draws no additional salary. It exists in name only. That whole framework is a ghost, a shadow. It says a lot about the entire ROC-oriented framework of the document as a whole, frankly.

Cherry-picking these bits and pieces of the constitution to make the case that Taiwan actively claims "all of China" as the Republic of China actually makes your case weaker, because there's just so little there there.

Taiwan does not claim China, nor does it claim to be "the real China". It hasn't since the 1990s and that position has only been cemented in the 2000s. The constitution itself says this, if you bother to read it carefully. Only one elected president has ever paid it lip service, and he's hilariously unpopular. 

The entire thing is a massive straw man: it's easy to argue against Taiwanese sovereignty even when one can't deny its de facto existence if one can point to a document and say, "hah, see? Even Taiwan agrees it's China!" But the document doesn't say that, at least not any longer, and few in Taiwan still believe it should.

To be honest, I don't think these constitutional truthers want what's best for Taiwan, nor are they interested in understanding or learning more about Taiwan. If they were, they'd know this already, or be open to hearing it.


So why not change the constitution?

Taiwan did change the ROC constitution -- that was what the additional articles were all about! 

But, I see the point here, and I'll bite: why not amend the core document, rather than add to it? Why not abolish the vestiges of the Provincial Council? Why officially "delegate" responsibilities for these defunct assemblies to other government agencies, rather than change the document that states they must exist? The Legislative Yuan has that power, so why not do it?

I believe the Taiwanese electorate does mostly want this, but it's a deeply unfair question. Why indeed? If it can be done, and Taiwanese people would likely support it, it shouldn't be difficult to deduce the reason why it doesn't happen: not Chinese control, but Chinese threats. 

Taiwan isn't controlled by China now, so changing it doesn't change China's power in Taiwan (that it has none). So why do it, when they're threatening to slaughter you?

Taiwan absolutely does not want a war, for exceedingly obvious reasons. We can all agree it would be a terrible outcome; the only entity who seems to want war is China. If Taiwan is already self-governing and doesn't need to specifically amend the constitution to maintain its sovereignty, and China has threatened to subjugate and annex Taiwan if it makes those changes, with millions of Taiwanese dying as a result, why would Taiwan do so?

Taiwan can and should make these necessary changes when China has resolved not to use force, not to invade, and to respect the wishes of its neighboring country. Until then, what purpose vis-à-vis the PRC would it serve, at such a terrible cost?

Insisting on constitutional amendments that don't change Taiwan's current sovereignty therefore doesn't make any sense, unless you're looking for a reason to blame Taiwan for China's actions. I suspect most of the ROC constitution truthers are doing just that.

It's that same old Catch-22: insisting that Taiwan cannot be "independent" until it makes declarations or constitutional amendments that may cause China to attack, but then blaming Taiwan for "provoking China" if it actually makes those declarations or amendments. There's no way to win, which is exactly what the anti-Taiwan, China-simping ROC constitution truthers want. 

Don't listen to them. They don't know what they're talking about.