The Republic that exists and operates now in Taiwan was originally founded in China in 1911. The Constitution which was promulgated in 1947, during the civil war in China, was a first for a nation of Confucian heritage without any recognized tradition of constitutionalism. This chapter reviews the obstacles that stood in the way of the value system of constitutionalism when it was first transplanted to the barren soil of Taiwan, including at various times cultural inertia, political resistance and hostility to the rule of a constitution. The chapter also examines how the non-native system gradually evolved and took root in a land dominated by Asian values, where the government or the ruler had customarily been pronounced as the people’s parent, and the fundamental notions of the rule of law, human rights, independent judiciary, separation of powers, equality, and the constitution itself, were all considered novel, foreign concepts.
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See Nylan (2001), p. 140. The Nine Provinces of Great Plan lists the sorts of resources available to the state; Sect. 1 cites the natural resources of the empire: water, fire, wood, metal and earth; Sect. 2 constructs a parallel between those physical and personal resources (cognitive and sensory) of the ruling elite; Sect. 3 turns to the kinds of institutional resources—from markets to diplomacy to armies—that together provide material security for one’s subjects; Sect. 4 rests the prosperity of the state upon astronomical data, as the basis for the agricultural calendar; Sect. 6 considers the appropriate function of punishments in state rule, after which Sects. 7, 8 and 9 list three methods (divination, portent reading, and material verification or portent-outcome) by which the ruler may ascertain the best policy in a given situation, on the assumption that what is morally right will also be of greatest utility. (《尚書•洪範》:「初一、曰五行,次二、曰敬用五事,次三、曰農用八政,次四、曰協用五紀,次五、曰建用皇極,次六、曰乂用三德,次七、曰明用稽疑,次八、曰念用庶徵,次九、曰嚮用五福,威用六極。」)
See the last paragraph of the Imperial Edict of the Abdication of the Qing Emperor on 12 Feb 1912: “Today, … I realize that the whole nation is expecting the republic, and such expectation has been indicated by the new mandate of heaven…. I, the Empress Dowager, therefore, together with the Emperor, hereby hand over sovereignty to the possession of all the people, and declare that the constitution shall henceforth be Republican. May it comfort those who wish for times of peace and prosperity, and comport to the belief given by sages and men of virtue that the world is for the public and shared by all.” (《宣統帝退位詔書》:朕欽奉隆裕皇太后懿旨,…今全國人民心理多傾向共和,…人心所向,天命可知。…特率皇帝將統治權公諸全國,定為共和立憲國體,近慰海內厭亂望治之心,遠協古聖天下為公之義。)
Zhonghua Minguo Xianfa (Constitution of the Republic of China) Art. 48 (1946) “On assuming office, the President shall take an oath, which shall read as follows ‘I do solemnly and with all sincerity swear before the people of the whole country that I will observe the Constitution, faithfully perform my duties, promote the welfare of the people, and safeguard the security of the State so as not to betray the people’s trust. Should I break my oath, I will submit myself to severe punishment by the State. This is my solemn oath.”
Si Fa Yuan Da Fa Guan Jie Shi Shizi Di 262 Hao [Justices of the Constitutional Court, Judicial Yuan, Interpretation No. 262] (11 June 1990) (R.O.C.). [hereinafter J.Y. Interpretation].
J.Y. Interpretation No. 388 (27 Oct 1995). J.Y. Interpretation No. 76 (3 May 1957). J.Y. Interpretation No. 470 (27 Nov 1998). J.Y. Interpretation No. 419 (31 Dec 1996). See Ministry of Justice (1999), p. 3.Liu Tie Zheng Da Fa Guan Shizi Di 541 Hao Jie Shi Yi Bu Tong Yi Jian Shu [劉鐵錚大法官釋字第541號解釋一部不同意見書] (Justice Tieh-Chen Liu’s partial dissenting opinion in Justices of the Constitutional Court, Interpretation No. 541) (4 Apr 2002) (R.O.C.). Hsieh Tsai Chuan Xie Zai Quan Da Fa Guan Shizi Di 541 Hao Jie Xie Shie Tong Yi Jian Shu [謝在全大法官釋字第541號解釋協同意見書] (Justice Tsai-Chuan Hsieh’s concurring opinion in Justices of the Constitutional Court, Interpretation No. 541) (4 Apr 2002) (R.O.C.).
J.Y. Interpretation No. 627 (15 June 2007), the Application filed by the “President” Shui-Bian Chen.The Book of Documents, Zhong Yong (translated as The Mean): “The universal Way of the world involves five relations, and practicing it involves three virtues. The five are the relations between ruler and minister, between parent and child, between husband and wife, between older and younger brother, and among friends. These five are the universal way of the world.” (《禮記•中庸》:「子曰:『……君臣也、父子也、夫婦也、兄弟也、朋友之交也,舞者,天下之達道也。』」) See de Bary and Bloom (1999), pp. 336–337.
Guodian Chu Slips: “If men are not distinct from women, father and son would not be close to each other. If father and son are not close to each other, there would be no righteousness between superordinate and subordinate. (《郭店楚簡》:「男女不別,父子不親;父子不親,君臣無義。」)
The term ping-deng (平等) was not employed to depict equality until the late 19th century, except for the Buddhist idea that “all living beings are equal.” (佛曰:「眾生平等。」) The rule of Li, as the core of social norms since ancient times in China, performed the critical role of distinguishing the nobility, civilians and slaves, as well as defining guanxi so that a social/political hierarchy may be established. See Li (2013), pp. 263–287.
Zhonghua Minguo Xianfa (Constitution of the Republic of China) Art. 7 (1946) “All citizens of the Republic of China, irrespective of sex, religion, ethnic origin, class or party affiliation, shall be equal before the law.”
When the Universal Declaration of Human Rights was proclaimed by the United Nations General Assembly on 10 December 1948, the Constitution of the Republic of China had already been promulgated.
J.Y. Interpretation No. 365 (23 Sept 1994).The concept of “Three Obediences and Four Virtues” (三從四德) neatly sums up the behavior that Confucians expected from women. “Three Obedience” indicates that a woman is under the authority of, or dependent upon, a male relative during all three stages of her life, reads as “Before marrying, she follows her father; after marrying she follows her husband; when her husband dies, she follows her son” (未嫁從父,既嫁從夫,夫死從子). “Four Virtues” are traits that every woman should develop, which are characterized as “wifely virtue” (婦德), wifely speech (婦言), wifely demeanor (婦容) and wifely work (婦功) as provided in Ban Zhao’s Lessons for Woman (《班昭•女誡》).
J.Y. Interpretation No. 372 (24 Feb 1995). J.Y. Interpretation No. 728 (20 Mar 2015). J.Y. Interpretation No. 452 (10 Apr 1998). J.Y. Interpretation No. 413 (20 Sept 1996). J.Y. Interpretation No. 554 (27 Dec 2002). J.Y. Interpretation No. 748 (24 May 2017).According to Chapter 12 of the Analects, the Master said: “In hearing lawsuits I am just like others. What is necessary is to see that there are no lawsuits.” (《論語•顏淵》:「子曰:『聽訟,吾猶人也,必也使無訟乎! 」 ) See Gardner (2007), p. 36.
The Volume of Chen-Chong in Hou Han-Shu (or “Book of the Later Han”): “When the rule of li is insufficient, criminal punishment applies. That is the complementary relationship between the rule of li and criminal punishment.” (《後漢書•陳寵傳》:「禮之所去,刑之所取;失禮則入刑,相為表裡者也。」)
Supra note 28.The Book of Documents, Yu-Shu (translated as the “Book of Yu”), Da-Yu-Muo (translated as “the Great Counsel of Yu”): “ …Owing to you being the minister of Crime and your intelligence in the use of the five punishments to assist the inculcation of the five duties, with a view to the perfection of the government, there may come to be no punishments through punishment, but the people accord with the path of Mean.” (《尚書•虞書•大禹謨》:「……汝作士,明于五刑,以弼五教,期于予治。刑期于無刑,民協于中,時乃功,懋哉。」)
The Book of Sayings of Confucius, Wu Shing Chieh (translated as “Understanding of the Five Offenses”): “There are five severe offenses, and homicide is the least. Those who act against heaven would be punished along with their family for five generations. Those who slander King Wen and King Wu would be punished along with their family for four generations. Those who act against ethics and moralities would be punished along with their family for three generations. Those who seek for spiritual beings would be punished along with their family for two generations. Those who commit homicide would be punished alone. Accordingly, homicide is the least of the five severe offenses.” (《孔子家語•五刑解》:「孔子曰:『大罪有五,而殺人為下,逆天地者罪及五世,誣文武者罪及四世,逆人倫者罪及三世,謀鬼神者罪及二世,手殺人者罪及其身。故曰大罪有五,而殺人為下矣。」)
The Book of Documents, Lizheng (translated as “Establishment of Government”): “(Emperor Wen would not himself appear for various notifications, in litigation, or in precautionary measures of the government.) Criminal affairs should be dealt with cautiously and carefully by appointing qualified officers and pastors, whose opinions bind the Emperor. This rule should not be breached. (《尚書•立政》:「庶獄、庶慎,惟有司之牧夫,是訓用違。」) This paragraph is now understood as the origin of judicial independence in ancient thought.
The Book of Sayings of Confucius, Shing Cheng (translated as “Criminal Affairs”): “Penalties are preliminarily determined by Li (吏), who will report the tentative penalties to Cheng (正). After Cheng receives the report, he/she will report to Da Szu Kou (大司寇), who will then report to the emperor. The emperor will ask three ministers to comment on the tentative penalties and reduce the penalties if any doubts are raised. After the procedure, the emperor will finally decide the conviction and the sentence.” (《孔子家語•刑政》:「成獄成於吏,吏以獄成告於正,正既聽之,乃告大司寇聽之,乃奉於王;王命三公卿士參聽棘木之下,然後乃以獄之成疑于王,王三宥之以聽命,而制刑焉,所以重之也。」) The paragraph shows the elaborate procedure leading to a conviction, the multiple instances, and the lack of real independence of the ancient judicial system.
Hongfan of Shangshu, The Nine Provinces of Great Plan. See supra note 2. J.Y. Interpretation No. 86 (15 Aug 1960).Zhonghua Minguo Xianfa (Constitution of the Republic of China) Art. 80 (1946), “Judges shall be nonpartisan. They shall try cases independently, in accordance with law, and be free from any interference.” Zhonghua Minguo Xianfa (Constitution of the Republic of China) Art. 81 (1946), “Judges shall hold office for life. No judge shall be removed from office unless he has been guilty of a criminal offense or subjected to disciplinary action, or declared to be under interdiction. No judge shall, except in accordance with law, be suspended from office, transferred, or liable to salary cuts.”
J.Y. Interpretation No. 392 (22 Dec 1995).When disputes regarding the constitutionality of certain laws are raised before the Justices, if the disputed laws fall within the domain where legislators enjoy wide discretion and Justices could find multiple ways to interpret the laws, the Justices may choose to adopt an interpretation that permits the disputed laws to be read in harmony with the Constitution. See Xu Yu Xiu Da Fa Guan Shizi Di 582 Hao Jie Shi Xie Tong Yi Jian Shu [許玉秀大法官釋字第582號解釋協同意見書] (Justice Yu-Hsiu Hsu’s concurring opinion in Justices of the Constitutional Court, Interpretation No. 582) (23 July 2004) (R.O.C.), which gives a clear explanation of the legal interpretation of constitutionality (Verfassungskonforme Auslgung, 合憲性解釋).
New York Times Co. v. Sullivan, 1964 U.S. 1500, 376 U.S. 967, 84 S. Ct. 1130, 12 L. Ed. 2d 83 (1964).
J.Y. Interpretation No. 509 (7 July 2000). Zhonghua Minguo Xingfa (Criminal Code) (Taiwan) Arts. 309 and 310.The Constitutional Court interprets Article 310 of the Criminal Code in the ways of constitutionality.
