Last week, Taiwan’s Executive Yuan quietly issued a new executive order voiding legacy executive orders from decades ago holding in effect that citizens of the People’s Republic of China are citizens of Taiwan. According to the new executive order, “the people of Mainland China are not nationals or citizens of the Republic of China.”  As such, PRC citizens “neither enjoy the rights nor have the duties of citizens of the Republic of China.” Under Taiwanese law, “people of Mainland China” is a term of art for citizens of the PRC whereas “people of the Taiwan area” means citizens of Taiwan.

While the new executive order may not have any lasting negative impact on the legal rights of PRC citizens in Taiwan in the long run, it should immediately stop the courts from conferring legitimacy on the old idea once taught in Taiwan’s schools that through the Republic of China, Taiwan claims sovereignty over China. It also makes crystal clear that the Republic of China (Taiwan) does not claim citizens of the PRC as its own. 

This is the latest in a series of incremental steps over the past two decades by DPP administrations to make it clear, at least domestically, that Taiwan and China are separate countries. To underline this point, the new executive order reiterates President Tsai Ing-wen’s position that Taiwan is not subordinate to China and China is not subordinate to Taiwan.

Legal arguments

The new executive order’s legal argument is that Taiwan’s Central Regulation Standard Act requires that any rules concerning the rights and duties of the people must be enacted by the legislative branch into law. The Act also prohibits the use of executive orders to regulate such rules.

Since nationality and citizenship are fundamental to the exercise of rights such as voting and the imposition of duties such as tax or military conscription, it follows that any law regulating citizenship must be enacted by the legislature and cannot be the subject of an executive order.

In 1992, Taiwan enacted the Mainland Affairs Act to regulate interactions and transactions between PRC citizens and Taiwanese citizens. While the Mainland Affairs Act has been amended many times, it is silent on the issue of whether PRC citizens are ROC citizens. Nonetheless, it says that any matters pertaining to relations with China not addressed in the Mainland Affairs Act are regulated by the other laws. Nationality is regulated primarily by the Nationality Act, which was amended in 2000 to replace references to “Chinese people” (中國人) in its definition of nationality with the phrase “citizens of the Republic of China.”

In short, the old executive orders deciding that PRC citizens were ROC citizens were unlawful because they impermissibly sought to define who is and isn’t a Taiwanese citizen. Taiwan is a European-style Rechtsstaat (state of law), meaning that the state submits itself to and acts under the law. The existence of clearly unlawful executive orders is intolerable to a Rechtsstaat, which is why the cabinet acted quickly to void these old executive orders after it came to light that the Kaohsiung District Court recently relied on one in Qian v. Kaohsiung City Public Works Bureau Maintenance Office (2021).

 In that case, the family of a PRC tourist killed in an accident successfully sought compensation from Kaohsiung City. The court held that the tourist’s parents had standing as ROC citizens to seek compensation for their son’s death under the State Compensation Act because a 1993 executive order by the Ministry of Justice decided that PRC citizens were ROC citizens. The court almost certainly took this position to avoid having to address the question of whether the plaintiffs had standing as foreigners under another provision of the same law.

The new executive order also directs executive branch agencies to protect the rights and interests of PRC citizens by expanding reciprocity to include them under laws like the State Compensation Act or amending other laws so that they apply to PRC citizens expressly or mutatis mutandi. The difficulty with this proposed solution is that while executive branch agencies can draft legislation, it is up to the legislature to enact it.

If the legislature fails to act, the courts will probably have to refer cases like Qian v. Kaohsiung to the Constitutional Court since it is widely accepted in the Taiwanese legal community that Taiwan must compensate PRC citizens for wrongful conduct by the state under Taiwan’s constitution, the Mainland Affairs Act, and its commitments under the International Covenant on Civil and Political Rights.

Policy arguments

The new executive order’s policy arguments are perhaps even more interesting than the legal ones. In brief, they are:

  1. It has been more than 30 years since the passage of the Mainland Affairs Act.
  2. It is a fact that neither Taiwan nor China is subordinate to the other.
  3. There is a clear distinction between the people of China and Taiwanese citizens.

Moreover, Taiwan has undergone a democratic transition and constitutional change since the Mainland Affairs Act took effect in 1992. It has been free, democratic, and under constitutional governance for many years...There have been many changes in the political situation and cross-strait relations since the Mainland Affairs Act was enacted. 

This suggests that the current Taiwanese government takes a dynamic view of its laws and perhaps even the constitution. While the Mainland Affairs Act was clearly envisioned as a temporary framework for private relations with China “before national unification,” the policy arguments in the executive order at least call into question whether the executive branch is in fact constrained by the Act’s policy goals on questions such as “national unification” in the new context Taiwan finds itself in 30 years later.

As the furious reaction by opposition politicians and affiliated think tanks shows, the new executive order was not only a legal act, but also a highly political one. The next administration is unlikely to be able to reverse it since few people in Taiwan would accept the proposition that PRC citizens are Taiwanese citizens. It also adroitly shifts responsibility for resolving this issue from the executive branch to the legislative and judicial branches.

Strategically, this was probably a smart move. The legislature will not want to take up this politically sensitive issue even if the DPP loses its majority next January. That means the Constitutional Court will eventually need to step in. The current DPP government can reasonably expect that the liberal Constitutional Court will be able to craft a legal solution that adequately protects the rights of PRC citizens while solidifying the Tsai administration’s position that Taiwan and China are two different states. After all, all of the justices on the Constitutional Court will have been appointed by President Tsai by the time it takes up a case to decide the status of PRC citizens under Taiwanese law.

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TNL Editor: Bryan Chou (@thenewslensintl)

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