Taiwan People’s Party (TPP) Chairman and presidential candidate Ko Wen-je (柯文哲) has proposed turning Kinmen into an “experimental zone” for peace between Taiwan and China.
Ko said that Kinmen is close to Taiwan and yet it does not affect the nation’s overall entity; if we want to carry out experiments concerning the political and social system, Kinmen would be a great place to do so.
Yet no matter which administrative district is chosen for such an experiment, it would be unconstitutional to put Ko’s proposal in practice, namely, carrying out political and social experiments in relation to autocratic China. Ko’s proposal not only goes against the Constitution’s concept of “defensive democracy,” but also demonstrates how Ko lacks even a basic understanding of democracy and the rule of law.
How exactly would Ko carry out an experiment involving democratic Kinmen and autocratic China? Would he consider suspending Kinmen’s elections or regulating freedom of speech through China’s Great Firewall? Would he consider imposing social controls on Kinmen residents by employing China’s ways, allowing the police to detain whomever they wish, or implementing facial recognition?
Clearly, any experiment regarding changing political and social systems and involving China would damage Kinmen’s freedom and democracy. Given that the Constitution is entirely based on the order of a liberal democracy, Ko’s proposal is clearly unconstitutional.
In Judicial Yuan Interpretation No. 499, the constitutional value of “defensive democracy” has been confirmed, stipulating that “Some constitutional provisions are integral to the essential nature of the Constitution and underpin the constitutional normative order. If such provisions are open to change through constitutional amendment, adoption of such amendments would bring down the constitutional normative order in its entirety. Therefore, any such constitutional amendment shall be considered illegitimate, in and of itself. Among various constitutional provisions, Article 1 (the principle of a democratic republic), Article 2 (the principle of popular sovereignty), Chapter II (the protection of constitutional rights), and those providing for the separation of powers, and the principle of checks and balances are integral to the essential nature of the Constitution and constitute the foundational principles of the entire constitutional order. All the constitutionally established organs must adhere to the constitutional order of liberal democracy, as emanating from the said constitutional provisions, on which the current Constitution is founded.”
In short, the power to amend the Constitution and the exercise of such a power should not violate the constitutional order of a liberal democracy; this is based on the principles of a democratic republic, of popular sovereignty and of protecting constitutional rights, as well as the provisions for the separation of powers and the principle of checks and balances.
If any of the proposed amendments contravenes the above principles, the amendment should be considered unconstitutional.
Our Constitution’s “defensive democracy” was based on principles from Europe after they learned a lesson from Nazi Germany. When countries across Europe were redesigning their constitutions, “defensive democracy” was emplaced to prevent the self-destruction or damage of their “constitutional order of liberal democracy.”
Ko’s proposal would damage Kinmen’s “constitutional order of liberal democracy,” hence it violates the Constitution’s “defensive democracy.” Ko’s proposal is by all means unconstitutional.
Huang Di-ying is a lawyer and chairman of the Taiwan Forever Association.
Translated by Emma Liu
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