President Lai’s Inauguration Speech: Resurrecting “Two Sides, Two Constitutions”
Global Taiwan Brief - Volume 9, Issue 12 (June 12, 2024)
President Lai Ching-te (賴清德) delivered his much-awaited inauguration speech on May 20. As Washington, Beijing, and the international community listened with bated breath as the democratically-elected leader—the self-proclaimed “pragmatic worker for Taiwan independence”—took center stage in front of Taiwan’s presidential office to deliver his vision for the future of the island nation and its relationship with Beijing. In contrast to the reckless and dangerous assertion of Taiwanese independence that officials from the People’s Republic of China (PRC) and Chinese propagandists insist the speech represented, a careful reading of the inaugural speech of the 16th president of the Republic of China (ROC) presents a fairly nuanced and balanced formulation that is generally within the bounds set out by his predecessors, in terms of both Taiwan’s place in the world and the relationship between the ROC and the PRC.
Most commentaries focused on the absence of any mention of the so-called “1992 Consensus” (九二共識), and how Beijing would react to the address—which did so predictably with military exercises. Yet, not nearly enough attention has been given to the legal and constitutional foundation that Lai used to undergird his approach to relations between Taiwan and China, and how it only deviates modestly from his predecessors’ approach. Indeed, the substance of President Lai’s speech did not represent anything groundbreakingly new.
In fact, the 16th ROC president chose to emphasize the role of the Republic of China (ROC) Constitution (中華民國憲法), and Lai referenced the ROC 13 times in his speech. (By comparison, Tsai referenced the ROC five times in her 2016 inauguration speech.) A closer reading of Lai’s speech also reveals that his position on the ROC Constitution—and its role in defining the relationship between the ROC and PRC, and the current status quo—bears striking resemblance to the interpretation of former Democratic Progressive Party (DPP, 民進黨) premier and current Taiwan representative to Japan Frank Hsieh’s (謝長廷) “two sides, two Constitutions” (憲法各表) or “respective interpretation of constitutions.” Interestingly, this is a proposal that Beijing was not necessarily opposed to when the former premier pitched the framework back in 2012.?
The ROC Constitution: A Primer
In one of the opening lines of President Lai’s speech, the ROC president pledged: “In accordance with the Republic of China Constitution system [sic], ?I will take on that solemn responsibility of leading the nation bravely forward.” [1] Through this statement—which former President Tsai also similarly used in 2016—President Lai rooted his authority to lead the nation in the ROC Constitution. Central to this statement is the fact that the meaning of “nation” in relation to the constitution and its territorial scope is undefined. Formed in Nanjing in 1946, the ROC Constitution claimed to cover both the mainland and Taiwan areas. While the ROC Constitution has never officially relinquished its claims over the “mainland area” (大陸地區), it has gone through seven revisions in the more than 50 years since the government relocated to Taiwan. Therefore, while the ROC Constitution itself does not explicitly define the territories under its effective control, in practice it defines the geographic jurisdiction in which its laws are applicable under domestic law.?
Promulgated in accordance with the ROC Constitution, the 1992 Act Governing Relations Between the Taiwan Area and Mainland Area (臺灣地區與大陸地區人民關係條例, hereafter referred to as the “Act”), these areas are “Taiwan, Penghu, Kinmen, Matsu, and any other area under the effective control of the Government.” The Act also proceeded to define the “mainland area” as “the territory of the Republic of China outside the Taiwan Area.”?
Indeed, the ROC and the PRC are founded on two distinct constitutions with overlapping claims of territory. Yet, the PRC has never exercised control over Taiwan and the ROC Constitution only applies to the Taiwan Area as defined by the Act. By placing the ROC Constitution as the centerpiece for his governance of Taiwan, Lai is simply recognizing the objective reality that the mainland area is effectively governed by the PRC Constitution (中華人民共和國憲法) and the ROC Constitution does not apply to PRC citizens (since they are not citizens of the ROC). Even though these two constitutions have overlapping claims to territories, they are still two separate constitutions applicable only to their respective jurisdictions.?
Despite Lai’s judicious position, Beijing has taken pains in conversations with foreign diplomats to assert that he is already departing from his commitment to follow his predecessor’s stance, and PRC spokespersons have zeroed in on Lai’s more frequent use of “Taiwan” versus “Republic of China.” A more measured critique could be to point out how Lai used “China” more frequently in his speech than did Tsai in her inauguration to refer to the People’s Republic of China—with the suggestion that it is a distinct entity in relation to Taiwan (and, oddly enough, the Republic of China). However, Lai did in fact use “cross-Strait” twice to refer to relations between the two sides. Although such word plays may mark a slight deviation from his predecessor (who would use “cross-Strait” or “Taiwan Strait”), Lai’s emphasis on the ROC Constitution demonstrates that his approach is not markedly different from the past.?
Lai’s Definition of the ROC Constitution
Contrary to some views that Lai did not reaffirm the approach of his predecessor by his omitting an acknowledgment of the so-called “1992 Consensus” meetings, and for not explicitly referencing the Act, Lai has rooted his cross-Strait approach in the ROC Constitutional Order and perhaps went a step further by clearly defining the relationship between the ROC and the PRC in explicitly referencing articles in the ROC Constitution. In addition to calling on Beijing to recognize the existence of the ROC, President Lai cited specific articles within the ROC Constitution to support his assertion:??
We have a nation insofar as we have sovereignty. Right in the first chapter of our Constitution, it says that ‘”The sovereignty of the Republic of China shall reside in the whole body of citizens,” and that “Persons possessing the nationality of the Republic of China shall be citizens of the Republic of China.” These two articles tell us clearly: The Republic of China and the People’s Republic of China are not subordinate to each other.
By embedding this principle and articles of the ROC Constitution into his approach to cross-Strait relations, Lai implies the existence of the two related but separate jurisdictions within two constitutional systems—which is consistent with Hsieh’s “respective interpretation of constitutions.” Former President Ma Ying-jeou (馬英九), who endorsed the “1992 Consensus” referring to the tacit agreement between the Chinese Nationalist Party, or Kuomintang (國民黨, KMT) and the Chinese Communist Party (共產黨) that there is “one China with different interpretations (一中各表), has been quoted as saying that Hsieh’s formulation “is not different than the Chinese Nationalist Party’s position.” As such, Lai’s speech could also be seen as an olive branch to Taiwan’s opposition parties and the CCP.?
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Indeed, even according to Frank Hsieh back in 2012, after reportedly meetings with then-Taiwan Affairs Office Director Wang Yi (王毅), who is now director of the CCP Central Committee Foreign Affairs Commission Office and minister of foreign affairs, had stated how the “spirit of the 1992 meetings, was in fact respective interpretations of constitutions” (但九二年會談的精神，其實就是憲法各表).? In further explanation of Hsieh’s logic, Jessica Drun wrote:?
In regards to the mainland, he [Hsieh] argues that the ROC Constitution was implemented in the mainland for two years and thus cannot be separated from ‘One China.’ By logical extension, officials in Beijing cannot accept ‘One China’ and reject the ROC Constitution. Hsieh’s policy, though he is widely seen as the most open to working with the PRC within the party, is still rejected by officials in Beijing. In response, Hsieh has argued that if the mainland rejects the ROC Constitution, then Taiwan will need to draft a new constitution, for which Beijing will need to bear responsibility (Conversation of CSIS delegation to Taiwan with Frank Hsieh, August 2013).
While the ROC Constitution has never relinquished its claims over the mainland area, Lai has made it clear that the ROC does not claim or exercise sovereignty over the PRC—while at the same time asserting that the PRC never exercised sovereignty over the ROC or Taiwan. Indeed, according to the ROC Constitution, sovereignty resides in the whole body of the citizens—and all ROC presidents have based national sovereignty on the ROC Constitution.
Although not explicitly stated, by emphasizing the ROC Constitution and asserting that the ROC and PRC are non-subordinate, Lai’s speech could also be seen as acquiescing to a “One China” within two constitutions. Even if the two sides are non-subordinate, they share a commonality in the design of their respective constitutions and overlapping claims of territory—even if ROC sovereignty does not extend to the mainland area.?
Conclusions
In perhaps a stroke of unintended brilliance, incremental constitutional reforms in the 1990s and the 2000s created the socio-political conditions and a pathway—albeit sometimes a choppy one—to a political convergence in the mainstream positions of the DPP and the KMT on the ROC Constitution. The ROC Constitution and its revisions have provided a legal basis for the definition of two distinct jurisdictions and have clearly distinguished the legal rights of the two peoples on the two sides without overlapping sovereignty. While Hsieh’s proposal was met with harsh criticisms at the time—most fervently from people even within his party—Lai’s apparent nod to the formulation reflects how far the DPP has moved to the center in the last decade.?
As former American Institute in Taiwan Chairman Richard Bush presciently wrote back in 2013: “a failure to agree [within Taiwan] on what aspects of Taiwan’s sovereignty must be defended at all costs and which are relatively trivial will only handicap Taipei’s negotiating position.” It appears that Lai has done his homework on this and delivered his answer:?
So long as we identify with Taiwan, Taiwan belongs to us all – all of the peoples of Taiwan, regardless of ethnicity, irrespective of when we arrived. Some call this land the Republic of China, some call it the Republic of China Taiwan, and some, Taiwan; but whichever of these names we ourselves or our international friends choose to call our nation, we will resonate and shine all the same. So let us overcome our differences and stride forward, with our shared aspirations, to meet the world.
By emphasizing the ROC Constitution in his inaugural speech as president, Lai reflects the view that the president’s authority is based on and limited by the ROC Constitutional Order—which is inclusive of its structure and associated laws. A careful and close reading of President Lai’s speech underscores a constitutional basis for his approach to cross-Strait relations. As laid out already, incontestable reality states that two constitutions exist across the Taiwan Strait and neither is subordinate to the other—a position that is well within the bounds set by his predecessors and, moreover, consistent with the status quo across the Taiwan Strait.?
The author would like to thank Ya-Hui Chiu Summer Fellow Jonathan Harman for his research assistance.
[1] The original Chinese term used in the speech was “中華民國憲政體制,” which could be generally translated as “ROC Constitutional Order” and not system—as such it may not necessarily represent a new formulation as a different English term may suggest.