page_title: Constitution of the Republic of China
section_title: Challenge of legitimacy
hierarchical_section_title: Constitution of the Republic of China / Issues / Challenge of legitimacy
context_page_description: The Constitution of the Republic of China is the fifth and current Chinese constitution, ratified by the Kuomintang during the Constituent National Assembly session on December 25, 1946, in Nanjing, and adopted on December 25, 1947. Since 1949, the constitution, along with its Additional Articles, remains effective in ROC-controlled territories.
  Intended for the entire territory of the Republic of China as it was then constituted, it was never extensively nor effectively implemented due to the outbreak of the Chinese Civil War in mainland China at the time of the constitution's promulgation. The newly elected National Assembly soon ratified the Temporary Provisions against the Communist Rebellion on May 10, 1948. The Temporary Provisions symbolises the country's entering into the state of emergency and granted the Kuomintang-led government of the Republic of China extra-constitutional powers.
  Following the ROC government's retreat to Taiwan on December 7, 1949, the Temporary Provisions together with martial law made the country an authoritarian one-party state despite the constitution. Democratization began in the 1980s.
context_section_description: A number of criticisms have been leveled at the constitution by supporters of Taiwan independence.
  Until the 1990s when Democratic Progressive Party (DPP) joined Kuomintang (KMT) to amend the constitution, the document was considered illegitimate by pro-independence advocates because it was not drafted in Taiwan; moreover, they deemed Taiwan to be sovereign Japanese territory until ceded in the San Francisco Peace Treaty effective April 28, 1952. Pro-independence advocates have argued that the Constitution was never legally applied to Taiwan because Taiwan was not formally incorporated into the ROC's territory through the National Assembly as per the specifications of Article 4. Though the constitution promulgated in 1946 did not define the territory of the Republic of China, while the draft of the constitution of 1925 individually listed the provinces of the Republic of China and Taiwan was not among them, since Taiwan was part of Japan as the result of the Treaty of Shimonoseki of 1895. The constitution also stipulated in the Article I.4, that "the territory of the ROC is the original territory governed by it, unless authorized by the National Assembly, can not be altered."  In 1946, Sun Fo, the minister of the Executive Yuan of ROC reported to the National Assembly that "there are two types of territory changes: 1. renouncing territory and 2. annexing new territory.  The first example would be the Independence of Mongolia, and the second example would be the reclamation of Taiwan. Both would be examples of territory changes. No such formal annexation of Taiwan islands by the ROC National Assembly conforming with the ROC constitution ever occurred since 1946, even though Article 9 of the Additional Articles of the Constitution of the Republic of China says, "The modifications of the functions, operations, and organization of the Taiwan Provincial Government may be specified by law." The Republic of China argues that sovereignty of the Republic of China over Taiwan was established by the Instrument of Surrender of Japan which implemented the Potsdam Declaration and the Cairo Declaration. The Allies have not agreed or disagreed to this rationale. In addition, the ROC argues that the Article 4 of Treaty of Taipei nullifies the Treaty of Shimonoseki and the original transfer of sovereignty of Taiwan from China to Japan.  Since this transfer of sovereignty occurred in 1945 before the promulgation of the 1947 constitution, the ROC government is of the view that a resolution by the National Assembly was unnecessary.
  While both symbolic and legal arguments have been used to discredit the application the Constitution in Taiwan, the document gained more legitimacy among independence supporters throughout the late 1980s and early 1990s due to democratization and it is now accepted as the basic law of the ROC by all of the major parties, and consider the Constitution represents the sovereignty of Taiwan. However, there are proposals being floated, particularly by supporters of Taiwan independence and the supporters of Taiwan localization movement, to replace the current Constitution with a document drafted by the Taiwanese constituencies in Taiwan.
caption: Seventeen National Assembly delegates elected to represent Taiwan Province in a photo with then President Chiang Kai-shek in 1946
exif: {}