The Constitution of the Republic of China (ROC) defines China not as a foreign country, but as the “mainland area.” As a result, people who are accused of spying for China cannot be charged with sedition or treason.
Democratic Progressive Party Legislator Wang Ting-yu (王定宇) has proposed an amendment to the Criminal Code that would categorize the Chinese communist regime as an “enemy” so that communist spies could be charged with sedition and treason.
Wang’s proposal is motivated by a concern for national security, but its constitutionality is likely to be questioned and it would be difficult to implement.
The greatest uncertainty in cross-strait relations is whether China is a friend or enemy of Taiwan. If an enemy, are postal, transport and trade links across the Taiwan Strait — known as the “three links” — a form of enemy collaboration?
If a friend, why does China suppress Taiwan in the international community? Why does it have more than 1,000 missiles aimed at Taiwan?
Why do Chinese fighter jets keep flying around Taiwan? Why does China keep verbally attacking Taiwan and threatening to use armed force against it?
It is difficult to describe cross-strait relations in terms of “friend” and “enemy.”
President Tsai Ing-wen (蔡英文) has said that she wants to handle cross-strait relations “in accordance with the existing ROC constitutional order.”
The preamble of the Additional Articles of the Constitution defines the status of cross-strait relations when it says: “To meet the requisites of the nation prior to national unification, the following articles are added or amended to the ROC Constitution.”
This is known as “constitutional one China.”
Some people think that the preamble is a political declaration that has no legal effect, but this opinion does not hold water.
One of the important features of the Constitution is that the preamble of the Additional Articles has supreme legal authority. The preamble commands and guides the articles of the Constitution.
The specific regulations stipulated in the articles embody and codify the values and principles of the preamble. Hence, the preamble has supreme legal authority, just as the articles of the Constitution have.
The Constitution defines cross-strait relations as being “prior to national unification.” As such, they are special relations, but definitely not state-to-state ones.
Otherwise, the Act Governing Relations Between the People of the Taiwan Area and the Mainland Area (台灣地區與大陸地區人民關係條例), which was formulated in accordance with the Constitution, would not exist.
As to what “one China” means, each side of the Taiwan Strait can define it in its own way.
If the Criminal Code were amended to categorize the Chinese communist regime as an “enemy,” that would mean that the relationship between China and Taiwan is a hostile one — and Wang’s proposed amendment would surely run into controversy over whether it contravenes the preamble of the Constitution.
Other questions would arise: Should the Act Governing Relations Between the People of the Taiwan Area and the Mainland Area be abolished?
Should the government ban Taiwanese from going to China for tourism, trade, business and transit?
Should Taiwanese businesspeople with investments in China be ordered to disinvest?
Legislators must give thought to these questions.
Phillip Hsu is a journalist.
Translated by Julian Clegg
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