Last April, former U.S. Ambassador Charles W. Freeman, Jr. told an audience at Stanford University that he was truly anxious about the prospect of a complete re-draft of Taiwan’s constitution.  In his view, if war erupts in the Taiwan Strait, a new Taiwan (ROC) constitution would be its most likely cause. He further asserted that Taiwan’s efforts to adopt a new constitution are illegitimate – an argument which he presumably hopes will discourage the United States government from countenancing any change in the island’s constitutional environment.
Freeman argues that “the constitution now in force in Taiwan vests sovereignty in the people of China, who approved it in a nationwide vote in 1947.” According to the Ambassador, the new constitution to be created in 2006 will be “a sovereign act of the people of Taiwan” without regard to the views of the Chinese. “By any legal standard, this would constitute an act of self-determination.”
Freeman makes the case that sovereignty over Taiwan is not solely vested in the people of Taiwan; and that consequently the people of Taiwan have no legal standing to change that constitution, much less supplant it altogether with a new one of their own device. But the facts may not be quite as Ambassador Freeman sees them.
There was no nationwide vote in China on a Constitution – in 1947 or at any other time. The Framing of the 1947 ROC Constitution was a unilateral act of the Chinese Kuomintang Party (KMT) that arose from a Party draft presented to the Chinese public on May 5, 1936. After minor revisions, it was passed in November 1946 by a National Assembly that had either been elected in parts of China in 1936 and 1937 or had been appointed by executive fiat sometime thereafter. 
But even before it got to that stage, the Chinese Communist Party (CCP) – the largest organized opposition party in China – announced that it would have nothing to do with the drafting of the new Constitution and withdrew its delegation from participation in April 1946. From a very early stage, the CCP absolutely rejected the validity of the Constitution. On January 1, 1947, Zhou Enlai told the U.S. Ambassador in Nanking, J. Leighton Stuart, “in spite of the fact that the so-called ‘National Assembly’ has already been held and a so-called constitution passed, their nature is still that of a ‘Chiang Kai-shek National Assembly’ and ‘Chiang Kai-shek Constitution’. We and the democrats of the whole country will determinedly not recognize them as legal and valid.”  Neither the Communist Party nor the post-1949 People’s Republic of China ever recognized the 1947 Constitution as anything but an illicit attempt to legitimize Chiang Kai-shek’s rule. Moreover, Zhou Enlai made this additional observation:
“The original National Assembly provided for in the PCC [Political Consultative Conference] decision was a National Assembly of all parties and groups in the nation and not elected through universal suffrage. But especially noteworthy is the fact that the so-called National Assembly representatives who retain seats in the present assembly were hand-picked by KMT dictatorship 10 years ago.” 
It is ironic, therefore, that the PRC should have any objection at all if Taiwan’s people see fit to abrogate the entire thing and start all over again. A new constitution for Taiwan would be especially appropriate because Taiwan’s people had next-to-nothing to do with the framing of the existing ROC Constitution.
While there is evidence that there were indeed Taiwanese delegates to the November 1946 National Assembly, there is little evidence that these delegates were actually elected by the people of Taiwan. In a 48-page report from the American Consulate in Taipei dated November 1, 1946, the U.S. Consul stated:
“Until October 1946 it was the prerogative of the Central Government in Nanking to select representatives from Taiwan for the National Assembly. Henceforth, however, the people of Taiwan will be permitted to select Taiwan’s representatives in the National Assembly, thus considerably offsetting the ill feeling generated by the control exercised by the Central People’s Political Council in local affairs.” 
Officers at the U.S. Consulate in Taipei had a very high regard for the political maturity of Taiwan’s citizens and their capacity for self-government. American officials characterized meetings of the Taiwan People’s Political Council held in May 1946 as follows:
“[There was] outspoken and forceful criticism from an articulate and intelligent body of local representatives, spokesmen for a public whose general level of education and information is considerably higher than the average for the mainland from which the government officials come. Attempts [by Central Government officials] to limit debate, questioning and criticism and to slur over important but embarrassing problems met with spirited opposition.” 
On October 27, 1946, the Central Government selected 17 National Assemblymen to represent Taiwan and published their names on October 31, 1946, without any recorded input from Taiwan’s electorate.  This is not because Taiwan’s voters were not up to the task. Throughout 1946, Formosans readily adapted to the concept of representative democracy and awaited the new constitution with optimism and anticipation. But the Kuomintang, it seemed, was not yet ready to confer democracy on a population that could actually make use of it. On January 10, 1947, Governor Chen Yi announced that the new ROC Constitution would not apply to Taiwan when it went into effect in China on December 25, 1947. According to a U.S. vice consul in Taipei at the time, Governor Chen explained, “mainland Chinese were advanced enough to enjoy the privileges of constitutional government, but because of long years of despotic Japanese rule, the Formosans were politically retarded and were not capable of carrying on self-government in an intelligent manner.” 
This peremptory suspension of democracy in Taiwan was no doubt one of the many factors that incited Taiwan’s citizens to a week of open rebellion that began on February 28, 1947. (Other factors included rampant KMT corruption, theft of private property, arbitrary arrests and executions, and general official incompetence.) After February 28, elections were cancelled, and the island was immediately put under martial law. Taiwan was not allowed to hold even local elections until 1950. There were no elections for National Assembly or Legislative Yuan members until 1969, and then only for assemblymen and legislators from Taiwan. 
The wanton corruption of the KMT administration in Taiwan which led to the “February 28 Uprising” and the bloody pogrom against Taiwanese elites that followed was a deep embarrassment to the United States. On April 18, 1947, the American ambassador in Nanking appealed to Chiang Kai-shek saying:
“Throughout 1946, Formosans sought permission to elect city mayors and hsien magistrates, in order to ensure themselves of some direct control over local police and over economic functions and public services. The announcement of China’s new Constitution was greeted with relief. Prominent Formosan leaders counseled that demands for local elections could wait until the Constitution would become effective at the end of 1947. In early January, however, the Governor-General announced that although the Constitution would be effective on the mainland on December 25, 1947, it would be impossible for the Government to allow local elections of mayors and magistrates in Formosa until December 1949. This had an effect which stirred political discussion to a new pitch. Formosans state that until they can elect their own representatives at all levels of local government they will have no security of person; they cannot control the local police, ensure the enforcement of law nor enjoy security of property.” 
Indeed, from March 1947 until 1988, Taiwan was in a state of martial law. And the “Temporary Provisions Effective During the Period of Mobilization for the Suppression of the Communist Rebellion” which placed the 1947 Constitution in a bizarre state of suspended animation, were not repealed until 1992. For over 45 years, the writ of the 1947 Constitution did not run in Taiwan nor did its protections, rights or privileges apply to the people of Taiwan.
Any argument that the 1947 Constitution vests Taiwan’s sovereignty in the people of China must logically require first that the 1947 Constitution continues to have any applicability in China at all. But in 1947, the Chinese Communists declared they “will determinedly not recognize…as legal and valid” either the “Chiang Kai-shek Constitution” or the “Chiang Kai-shek National Assembly.” Since then, the People’s Republic has had five separate constitutions of its own, all of which in turn superceded the 1947 Constitution. The argument also presumes – mistakenly – that Taiwan’s people, as a part of the broader family of citizens of China, had some participation in the framing of the document or enjoyed its benefits. The reality is that Taiwan’s Chinese overlords prevented Taiwanese from voting for the very National Assembly representatives who would have provided Taiwan’s citizens with a voice in the framing of the Constitution. As such, the history of the 1947 ROC Constitution suggests instead that Taiwan’s people are not bound by a constitution that emerged in China without their participation or approval, and the theoretical beneficence of which they did not enjoy.
1. As far as I can determine, the only text of this speech available on the internet is one at the People’s Daily site. See “Mr. Freeman on Sino-US Relations and Taiwan Issue”, People’s Daily internet edition, UPDATED: 14:30, June 25, 2004, at http://english.people.com.cn/200404/23/eng20040423_141360.shtml
2. An overview of the framing of the ROC Constitution is contained in an 18-page analysis by the U.S. Embassy in Nanking dated November 1947. See Dispatch No. 1124 of November 25, 1947, to the Secretary of State from First Secretary of Embassy in China, William T. Turner; Subject: Chinese Constitution; NARA accession No 893.011/112547.
3. Foreign Relations of the United States, 1946 Vol. X, pp. 677-8
5. Dispatch No.25 from the American Consulate Taipei (Taihoku) to the U.S. Ambassador in Nanking, November 1, 1946, p. 46.
6. Dispatch No. 311 from the Ambassador in China (Stuart) to the Secretary of State, dated Nanking December 4, 1946. Reprinted in FRUS, 1946 Vol. X, p. 590.
7. I am indebted to Dr. Bruce Jacobs for this list which was taken from the October 31, 1946 issue of Taipei’s Xinsheng Bao (New Life News). The list includes (in pinyin): Li Wanju, Yan Qinxian, Huang Guoshu, Lin Lienzong, Lin Bihui, Nan Zhixin, Chen Qiqing, Hong Huolian, Liu Mingqiao, Wu Guoxin, Jian Wenfa, Zhang Qilang, Zheng Pincong, Gao Gong, Lian Zhendong, Xie E, Ji Qiushui. How many were legitimate representatives of Taiwan’s people, and how many were KMT Party officials chosen without any reference to the electorate is unclear. Certainly, Li Wanju, Huang Guoshu and Lian Zhendong (Current KMT Chairman Lien Chan’s father) all played important roles in post-1949 Taiwan. Li Wanju, of course, was in the “opposition.” Ms. Xie E, moved the States during the 1940s, Lin Lianzong was arrested in the aftermath of the February 28 uprising.
8. George H. Kerr, Formosa Betrayed, Houghton Mifflin, Boston 1965, p. 240.
9. Representatives from Mainland China constituencies elected in 1947 were allowed to retain their seats indefinitely — and as they died off, losing candidates for those seats (who managed to escape to Taiwan) were appointed in place of the dead. LY and NA members were virtually members-for-life and faced no electoral challenge until Constitutional revisions in 1992.
10. U.S. Ambassador John Leighton Stuart’s memorial to Chiang Kai-shek of April 18, 1947. See United States Relations With China With Special reference to the Period 1944–49, U.S. Department of State, Publication 3573, Far Eastern Series 30 (Washington: U.S. Government Printing Office, August 1949), p.925.