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Frank Hsieh explains his ‘constitutional
consensus’ proposal
Former premier Frank Hsieh caused a stir with his proposal
of using a ‘constitutional consensus’ as the new basis for cross-strait
dialogue. In an interview with ‘Taipei Times’ staff reporters Huang Tai-lin and
Vincent Y. Chao on Tuesday, Hsieh expounded on his idea, suggesting how it could
strike a middle ground with Beijing while dispelling pro-Taiwanese independence
groups’ concern that it could further fold Taiwan into the one China framework
Huang Tai-lin and Vincent Y. Chao
Taipei Times: What can you tell us about the “constitutional consensus”
(憲法共識) you raised on Jan. 10 as an alternative to the so-called “1992
consensus,” currently used by President Ma Ying-jeou’s (馬英九) administration as
it deals with Beijing? Why do you feel this is an issue worth dealing with?
Frank Hsieh (謝長廷): The “constitutional consensus” is perhaps Taiwan’s
greatest consensus. And only with a consensus accepted by most Taiwanese can we
present a [united front] internationally to stand up for Taiwan’s interests and
dignity.
The”1992 consensus” basically refers to a policy of one China, but with
different interpretations. In Taiwan, this “1992 consensus” is, in fact, not a
consensus. Not only have both parties failed to agree to this, but it is
commonly used as a tool by President Ma to attack the Democratic Progressive
Party (DPP) and opposition leader [DPP chairwoman] Tsai Ing-wen (蔡英文).
Now I don’t think the government’s cross-strait policy is an ideal medium for
conducting attacks, and it shows that instead, cross-strait policy should be
based on a consensus that the greatest number of people can agree to. This
consensus should be based on the Republic of China (ROC) Constitution.
When I mention that we should have a “constitutional consensus,” it encompasses
ideas including an “overlapping consensus (重疊共識)” and “one Constitution, two
interpretations (憲法各表),” which I believe should replace the “one China, with
each side having its own interpretation (一中各表).”
TT: Is your goal to use these ideas to eventually replace the so-called “1992
consensus”?
Hsieh: The way I see it, the “constitutional consensus” is an alternative to
the “1992 consensus,” while the “one Constitution, two interpretations” idea is
an alternative to the “one China with each side having its own interpretation.”
The plan is to use the “one Constitution, two interpretations” externally
[against China], and to use the “overlapping consensus” [and the “constitutional
consensus”] internally within Taiwan.
I didn’t invent this overlapping consensus; I’m borrowing the idea from Harvard
professor John Rawls. According to Rawls, countries like ours that have many
different opinions on the Constitution still have parts of the document which we
can “overlap” or agree on. The parts of the Constitution that attract criticism
the most are the parts where we don’t have this overlapping agreement.
Most of this criticism, as a result, has been long expected. There are of course
some people who think our Constitution is a Greater China (大中國) Constitution,
which is where we don’t have this overlapping agreement. I don’t see a problem
with this.
But the Constitution also includes parts that we can all agree on, for example,
the Executive Yuan. We, the DPP, have had premiers in the past. We can also
agree on the Presidential Office. Are we going to say we agree with the liberty
and democratic values in the document? Of course.
Most of the Constitution, we do agree on. The controversy is limited to the
relatively small parts that deal with jurisdiction and sovereignty. We can’t
fail to identify with the entire Constitution just because of these small
disputes.
TT: Your critics in the pro-independence movement have, however, said these
aren’t just small disputes. In fact, they say the entire ROC Constitution is the
irresolvable problem. In this case, won’t it be difficult to find an overlapping
consensus?
Hsieh: The DPP charter is already very clear in saying that any changes to
Taiwan’s political status must take place through a public referendum. In the
absence of these changes, or this referendum, our current status is to preserve
the status quo.
If one day we do have a referendum changing our country’s name to Taiwan, we
hope that everyone can recognize and accept this. But in the meantime, we cannot
help but accept the ROC; otherwise how can we ask [others] to accept Taiwan? It
wouldn’t be democratic.
And what if the [independence movement] takes many decades? It wouldn’t be in
Taiwan’s or the people’s interests to not have a consensus on our Constitution
in the meantime. The Constitution is the framework that protects the people’s
rights and limits the abuse of power.
If we simply chose to ignore the Constitution, and only talk about laws,
wouldn’t this overly benefit the governing party at the time? A legislative
majority would be able to do whatever it wanted.
We should look at a consensus on the Constitution in three different ways: It
will give us a united front internationally, it will protect the rights of the
people and it will unify the entire nation.
TT: How about if this consensus is achieved and most people end up
identifying with this ROC Constitution? Do you think it will put a damper on any
moves by Taiwanese in the future to make political changes to the system?
Hsieh: I don’t. With a “constitutional consensus” in the future, we will ask
that the president, regardless of who it is, to use this Constitution and our
official name: The Republic of China. We will have to stand up to People’s
Republic of China (PRC) and ask that they give the Republic of China some
international space.
But if they turn us down, if they tell us that is impossible, then the Taiwanese
people will see clearly that our national title is no longer useful. Then, we
may even turn around and say that we need a new national designation.
TT: Going back to the “1992 consensus” and the “one China” principle — how
likely do you think this is? Doesn’t your proposal have more of a “two Chinas”
meaning?
Hsieh: The “one China, separate representations” policy, if used properly,
also refers to an ROC, the same as our “constitutional consensus” idea. But the
difference in our idea is that it gives Taiwan more dignity, in addition to a
little bit more [wiggle-room]. We can keep our insistence, for example, and let
China have some more [leeway in interpreting our Constitution].
It is best if we can keep some gray areas in our relationship. This way, we can
continue cross-strait ties at the same time that Taiwan becomes stronger to
fight for our own rights and interests.
TT: Aren’t you worried that our international partners may misinterpret and
see this gray area as Taiwan folding into the one China principle?
Hsieh: Well in all actuality, President Ma has already, under the “one China
with each side having its own interpretation” policy, taken us into a “one
China” principle. What my consensus will do is take Taiwan out of it, as no
single country can have two Constitutions at the same time.
In fact, the way I see it, the “one Constitution, two interpretations” idea
basically already refers to both sides of the Taiwan Strait being two different
countries. We are just not emphasizing this fact, preferring to use this phrase
more delicately.
Basically, when we talk about the Constitution, we are talking about sovereignty
and two different countries. The [“one Constitution, two interpretations” idea]
cannot refer to just one country.
TT: So you’re trying to give Beijing a method where they too can accept your
proposal?
Hsieh: First of all, they already haven’t expressly agreed with the “one
China with each side having its own interpretation,” and in reality, the
likelihood of them accepting this “one Constitution, two interpretations” idea
isn’t high either. Both are equal in this respect.
But as long as China doesn’t strongly condemn our idea, it will mean that
cross-strait ties can continue. We aren’t looking for their acceptance, as they
already don’t accept the ROC.
TT: You keep mentioning the “one China with each side having its own
interpretation,” which as part of the so-called “1992 consensus,” is one that
the DPP doesn’t officially recognize. Are you tacitly suggesting you acknowledge
their existence to begin with, hence presenting an alternative to them?
Hsieh: I have not acknowledged [their existence] as I am only presenting the
“constitutional consensus” as an alternative [to the “1992 consensus.”]
I have made myself very clear on this. I believe that as the “1992 consensus”
has seen some questions from the DPP, and the “one China, separate
representations” policy has attracted controversy from the public, neither are
fit to be Taiwan’s tool in cross-strait relations.
I do acknowledge that a cross-strait meeting took place in 1992. While the KMT
[Chinese Nationalist Party] might insist the spirit of the meeting was in
essence the “one China with each side having its own interpretation,” I believe
that instead, the spirit was that [both sides stuck to their respective
Constitutions].
So relative to all this, people can see that my ideas actually take Taiwan out
of the one China framework. “One China, with each side having its own
interpretation” implies that both sides are one country. And although my
“constitutional consensus” doesn’t explicitly mention how many countries I’m
referring to, it’s clear that two Constitutions cannot accept in a single
nation.
So when people around the world hear about this, that [Taiwan and China] have
two Constitutions, right away they will know that we aren’t one country and are
in fact two.
TT: Just how likely do you think it is that your ideas can be accepted by
policymakers on both sides? What immediate effects could it have on the ongoing
cross-strait relationship?
Hsieh: The problems with cross-strait ties are that it has to normally
fulfill three conditions.
First, the US cannot be opposed to it. Experience shows that Taiwan is still
unable to carry out a policy under the face of stiff US resistance. For example,
if, say, we were to suddenly become the Republic of Taiwan, the US would of
course be opposed; we have tried and seen this before in the past.
Second, Beijing also cannot stringently oppose it. [The tricky part] is,
however, that Beijing cannot also agree with [Taiwan’s cross-strait policies]
too much. If they accepted it, it would probably mean that we are doing
something wrong. The policies they can accept cannot be the ones that are too
beneficial to Taiwan.
We just have to strike a balance, we also cannot see them at the point where
they [lob] the policy back at us.
Third, it has to unite Taiwan domestically. We can’t always have divisions
within the country, saying we don’t need to recognize this or recognize that.
Taiwan needs a consensus on cross-strait ties.
This is also why I announced previously that forces for Taiwanese independence
should join together with defenders of the “status quo,” to fight against
encroaching unification efforts.
When I say defenders of the status quo, I mean the people that currently
recognize the ROC, recognize the Constitution. In order to consolidate them
together, this is why we need to request that both sides find the overlapping
consensus.
For example, when pro-independence supporters say they are unable to accept some
parts of the Constitution, saying that [Taiwan is part of China], I don’t see
this as a problem. We just won’t include that as part of the overlapping
consensus.
TT: Your ideas make it seem like you want to strike a delicate balance
between what Beijing can and cannot accept in terms of cross-strait ties. Is
this your aim?
Hsieh: Right. While they might not accept our ideas, judging by the way they
have even gone as far as to reject “one China, with each side having its own
interpretation,” it will also not push them over the edge. And as long as it
doesn’t, we can start to grow our internal movement, our internal consensus.
Internationally, [our partners] will see that not much has changed and that the
security situation in the Asia-Pacific Region remains the same. But Taiwan will
have some breathing room, some room to expand.
TT: How do you expect to acquire this “constitutional consensus” among all
Taiwanese, especially if you cannot even convince pan-green supporters to first
support your proposal, as seen by the mixed views recently gathered from
pro--independence and other groups? Have you thought of first winning the
backing of pan-green supporters before you set out to win a consensus from the
pan-blue camp, and then China?
Hsieh: I have tried this and I simply don’t think it will ever be possible.
And if [acquiring the pan-green consensus] was the condition, I’m afraid that
our country would never be able to walk out on its own.
Twenty years ago, I attended the preliminary drafting of a Taiwanese
constitution. That was 20 years ago, the children just born then are now 20
years old. We thought that [the Constitution] wasn’t normal at the time and we
didn’t want to recognize it.
But we can’t keep telling our children that the Constitution we have now is
wrong. We should be having a Republic of Taiwan constitution, but who wants to
come out for a revolution? And so times passes quickly, we still have to eat, to
go and [have fun]. It is irresponsible to [reject our Constitution].
I do think, however, that every politician should recognize that there is the
potential for the change and respect it. We also have to be willing to accept
new developments. Once we accept that the old path [for Taiwanese independence]
is broken, we should actively try and pursue a new path like a public
referendum.
If you take a close look at all the people who have criticized the
“constitutional consensus,” none of them are [DPP] government officials,
municipal mayors or even [former] premiers. This is because we are too
contradictory amongst ourselves.
On the one hand, we say that the [government] or the KMT has been violating the
Constitution, and contend that we want a constitutional interpretation from the
Council of Grand Justices. But on the other hand, how can we say that this is a
Constitution that we don’t recognize?
There is a principle that once we have already used this Constitution for so
long, it means that we already have a consensus on it. Really, we [the DPP] only
have objections to two of its articles [on sovereignty], which doesn’t mean that
we cannot accept the entire document.
To put it in perspective: We also object to the death penalty in the Criminal
Code, but this doesn’t mean that we don’t accept this law. In Japan, there are
also many objections to their Constitution, but we won’t see them giving it up
just because of the controversy.
I believe that every president should be required to comprehensively list out
their ideals on [the Constitution] and our country, including President Ma. It
should also include how they plan to achieve this ideal, the process and its
costs. This is the move that will mark a responsible national leader.
In the DPP, we have many people who have this ideal, but [haven’t] expanded on
the process of how they plan to arrive at this ideal. On the contrary, the KMT
doesn’t have national ideals; it just simply goes on with its [administration]
day by day, doing business [with China]. This isn’t right.
What should happen is that we talk about an ideal. I think it is also important
to realize all that we can do before this ideal is realized.
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