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Officials are deliberately twisting the
Constitution
By Li Ming-juinn 李明峻
The landslides that occurred on the Suhua Highway in Yilan on Oct. 21 resulted
in the death or disappearance of more than 20 tourists from China. During an
interview, an official from the Ministry of Justice said that following the
intent of Article 2 of the Act Governing Relations Between the Peoples of the
Taiwan Area and the Mainland Area (台灣地區與大陸地區人民關係條例), “people in the mainland
area are also nationals of the Republic of China [ROC].”
The same official said that neither the act nor the State Compensation Act
(國家賠償法) include any regulations stopping “people in the mainland area [China]”
from applying for national compensation. Then on Oct. 25, Red Cross Society of
the Republic of China president C.V. Chen (陳長文) published an article in the
Chinese-language United Daily News expressing the same opinion. To a certain
extent, the opinions of an official and a confidante of the president reveal the
basic approach that President Ma Ying-jeou’s (馬英九) administration will take on
this matter, namely to treat citizens of the People’s Republic of China (PRC) as
citizens of the ROC.
However, the legal basis for the Act Governing Relations Between the Peoples of
the Taiwan Area and the Mainland Area comes from Article 11 of the Additional
Articles of the Constitution of the Republic of China (中華民國憲法增修條文). This article
states that: “Rights and obligations between the people of the Chinese mainland
area and those of the free area, and the disposition of other related affairs
may be specified by law.”
If the ROC really does include China, and if citizens of the PRC are the same as
citizens of the ROC, then Article 11 of the Additional Articles of the
Constitution is an unconstitutional set of regulations violating the principle
of equality as outlined in the Constitution, as is the Act Governing Relations
Between the Peoples of the Taiwan Area and the Mainland Area itself.
The reason for this is that people of the same country must not receive
different treatment just because they live in different areas. Article 11 of the
Additional Articles of the ROC Constitution states that: “the disposition of
other related affairs may be specified by law” and this allows for differential
treatment. However, up until now, there has not been any substantial explanation
to say that Article 11 of the Additional Articles of the ROC Constitution is
unconstitutional, nor has anybody questioned the constitutionality of the Act
Governing Relations Between the Peoples of the Taiwan Area and the Mainland
Area. Extrapolating from this, we can also say that according to Taiwan’s
current Constitution and legal procedures, giving different treatment to the
people of Taiwan and China is in fact the only way to meet the requirements of
the Constitution, while treating people from China and Taiwan in the same way
would be unconstitutional.
This is self-evident. PRC nationals cannot apply to Taiwan’s central or local
governments for the social benefits that all ROC citizens have a right to, such
as birth subsidies, old age pensions, subsidies for low-income families,
compulsory national education and national health insurance. By the same token,
Chinese citizens also do not have to fulfill obligations that Taiwanese citizens
must fulfill, such as paying taxes or undertaking compulsory military service.
These examples clearly show that according to Taiwan’s legal system, it is
impossible for those who do not have ROC citizenship to suddenly gain that
status when the State Compensation Act is made applicable to them. If the recent
comments made by lawyers, the Ministry of Justice, officials from the Mainland
Affairs Council and Chen were not the result of total ignorance of the law, they
were a deliberate misinterpretation.
Li Ming-juinn is a member of the Northern Taiwan Society
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