Saturday, February 18, 2017

What's up with Taiwan? Resolution 2758 and Taiwan Retrocession Explained

I came across this interesting video of Taiwanese parliamentary debate. Over the issue of history syllabus to be implemented in Taiwan, legislator from Democratic Progressive Party Kuan Bi-ling posed questions to Taiwanese education minister Wu Si-hua. The debate took place on 3 March 2015.

I really like this video because it taught us an important lesson on State succession for China in the United Nations by explaining Resolution 2758 and the true nature of handover of Taiwan after World War 2.

Kuan began with Chinese foreign minister Wang Yi's remark of People's Republic of China as the founding member of the United Nations. It caused a stir among ethnic Chinese in Taiwan, because the founding member of the UN was Republic of China. In 1971, Republic of China was replaced with People's Republic of China via Resolution 2758 of the United Nations General Assembly. Kuan mentioned one important keyword in the Resolution, that is "restore". With the Resolution, all rights and privileges of the Chinese seat was restored to the People's Republic of China and unlawful representatives of Chiang Kai Shek expelled from UN.

How can Wang Yi claim that his country founded the United Nations? Kuan said that Wang Yi is right, and ordinary people got it wrong. According to the Resolution, the personality of the ROC is being restored to the PRC. It not only restores the seat, but also restores the PRC to the status of being a founding the UN. In essence, the PRC is being "grafted" to the ROC, thus confirming the sovereignty of the ROC is being succeeded by the PRC. In terms of the United Nations, the Republic of China is the People's Republic of China and vice versa.

The next point of contention raised by Kuan is "Retrocession of Taiwan to Republic of China", intended to be taught in [Taiwanese] schools. This raised serious problems about factual accuracy.

On 25 October 1945, Chiang Kai Shek took over the administration of Taiwan from Japan. In reality, Chiang was conducting military occupation of Taiwan on behalf of the Supreme Commander of the Allied Powers, and the Republic of China has yet to legally obtain sovereignty over Taiwan. Chiang told the truth to one of his subordinate, Chen Cheng about the true nature of his governance in Taiwan, that it was a trusteeship. An important principle in international law is that military occupation does not transfer sovereignty.

Kuan gave us very interesting discussion questions. Who was the founding member of the UN? Which country took over Taiwan from Japan through "retrocession"? The answers are the same, that is Republic of China, pointing to the same sovereign body. And since the ROC has been succeeded by the PRC, sovereignty over Taiwan is carried over to the PRC. Also given that ROC and the PRC refers to the same country, Wang Yi is right in the sense to refer ROC as his country.

Kuan pointed out about the factual inaccuracy of takeover of Taiwan. She objected that takeover of Taiwan was not depicted as "military occupation on behalf of the Allies" but rather "retrocession of Taiwan to the Republic of China" in history syllabus. That is to say, there was no transfer of sovereignty of Taiwan on 25 October 1945, but schoolchildren are being misled into believing that sovereignty of Taiwan went back to China.

Why has Kuan taken sovereignty of Taiwan very seriously? Any question of sovereignty is no joke because it concerns national security. If one accepts the notion that Taiwanese sovereignty was reverted to Republic of China, and given that ROC has been succeeded by the PRC, Taiwan will inevitably be part of the PRC. This gives a foothold for authoritarian China to lay claim on Taiwan.

Clearly, she understands that Taiwanese people do not want their hard earned democratic system to be compromised by China due to false description about sovereignty for Taiwan. It becomes important to deny that China has de jure sovereignty over Taiwan, and accurately describe that Chiang was conducting military occupation as an Allied Commander, or that Republic of China was merely an occupying power over Taiwan.

The Minister of Education responded that the country is founded upon the foundation of The Constitution of the Republic of China and Additional Articles to the Constitution. The DPP legislator immediately rebuked the minister for "not facing the truth".

What is the problem with the Minister's statement? Because we are not lawyers, we only have superficial understanding of Constitutions. Most of us only understand that our Constitution(s) represents our countries, but are ignorant about one important principles of law.

Constitutions are not merely written documents that has power in their own right. For a Constitution to have a life of its own, it must be supported by the power of the people. This principle is what we called constituent power. After all, the people constitute the law, hence the supreme law is called constitution. With the constituent power, comes the power to amend the Constitution.

The Constitution of the Republic of China is drafted to be implemented in Mainland China. With the defeat and relocation of Republic of China to Taiwan, what happened to the Constitution?

Words of the Constitution can be preserved, but the ROC Constitution is now dead. Because, the people have used their constituent power to overthrow the ROC Constitution and created the PRC Constitution as the new law for China. People of Taiwan were subjected to Japanese sovereignty, did not take part in drafting the ROC Constitution and hence have no constituent power for the law. Scholars who went into exile with Chiang Kai Shek told their government: Not a single word of the Constitution can be changed. In principle, since the constituent power has been lost, the Constitution cannot be cited to give legitimacy.

The ROC promulgated an executive order on 12 January 1946 to revert citizenship of Taiwanese inhabitants to Chinese. Since China was only an occupying power without sovereignty over Taiwan, such a conversion of citizenship constitute a war crime, and also in violation of nationality laws of the ROC at that time. One can figure that sovereignty of Taiwan remained with Japan from 1945 through to 1952, when the Treaty of San Francisco came into force.

The minister was ignorant about the fact that Taiwan is not included in the territory defined in the ROC Constitution. Implementing the ROC Constitution outside the sovereignty of China does not give the document a new life. The Additional Articles, although serving the purpose to govern Taiwan as a government-in-exile, are in fact unauthorized insertions done by people holding no constituent power. Without power that comes from the rightful people, the ROC Constitution is only a zombie.

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