Taiwan

For the twenty-first century, most law and society activities in Taiwan concern the political questions that have emerged there and the types of legal institutions that will evolve to represent the people's interests. A review of Taiwan's history and its relationship with the People's Republic of China (PRC) provides the necessary context.

In the first half of the twentieth century, Taiwan, an island off the Chinese mainland, was under Japanese colonial rule. At the end of World War II, Taiwan became part of China under the Kuomintang (KMT, Nationalist Party) government. Established in 1912, the Kuomintang became the ruling party in Taiwan in 1949. Four years later, the Kuomintang government lost control of the Chinese mainland to the Chinese Communist Party (CCP) and retreated to Taiwan. In 1972, the United Nations (UN) rejected the Taiwan government's claim to represent China in favor of the People's Republic of China (PRC), governed by the Chinese Communist Party.

Initially, Generalissimo Chiang Kai-shek (1887–1975) and his Kuomintang comrades regarded the retreat to Taiwan as a strategic move to recover his forces and then retake the mainland. They employed the Temporary Provisions for the Period of Communist Rebellion (TPPCR), so-called martial law, as the major coercive measure to strengthen KMT rule over Taiwan.

The TPPCR limited political participation at the national level, banned the formation of new political parties, and censored political dissidents who advocated communism or Taiwanese independence.

To formalize its claim to be the only legitimate government of the whole of China, the KMT froze the offices of the 1948 mainland-elected national assemblymen and legislators. In 1969, the Kuomintang amended laws and opened up supplementary elections for filling the increasing vacancies left by mainland-elected representatives who had died in office. This legal and institutional change gave dissident politicians the route to the state apparatus through the electoral channel as well as to challenge Kuomintang rule. After several electoral victories, the politicians who refused affiliation with the KMT publicly termed themselves tangwai candidates. In this context, the predominant slogan was “no confrontation, no gains.” On the eve of the 1986 parliamentary election, the tangwai dissidents declared the birth of the Democratic Progressive Party (DPP), which succeeded in lifting martial law.

In the wake of these events came a post-1980 judicial activism and a robust Taiwanese-oriented national consciousness. Since then, two achievements have occurred—the amendments to the Administrative Litigation Law and the decisive enforcement of the State Compensation Law. In the pre-1987 authoritarian Kuomintang regime, the rule of law expanded to include the rule of executive regulations. These flawed executive [Page 1452]regulations and the abuse of executive power largely remained unchecked. Under the Administrative Litigation Law, any executive order to be valid had to be authorized by a statute that provides clear and specific purposes, contents, and scopes. The enforcement of the State Compensation Law subjects all public servants to administrative accountability. Ordinary citizens who suffer loss due to invalid administrative action can recover compensation from the government once that action is proved unlawful under the State Compensation Law.

In the process of the post-1987 slow politicization, the DPP-inspired Taiwanese-oriented national consciousness ended the KMT rule in the 2000 presidential election when the DPP candidate, Chen Shui-bian, defeated the KMT candidate Lien Chan and became the first non-Kuomintang president. Asserting electoral authorization, President Chen is seeking to restore Taiwan's sovereignty internationally and domestically. Recovering Taiwan's UN membership by claiming Taiwanese independence and establishing a Republic of Taiwan by removing Chinese elements from the constitution are the two fundamental approaches he has adopted.

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