Can the ROC Flag be Changed Without Amending Constitution?

Can the ROC Flag be Changed Without Amending Constitution?
Photo Credit: Reuters/達志影像

Last month, I received an email from a reader informing me of an online discussion regarding designing a new ROC flag. This may be a good time to post about this given the forthcoming deadline of the flag design contest (Chinese Facebook page).

Excerpts of the email:

Here’s something from Forumosa you may be interested in. It’s from a thread devoted to proposals for changing Taiwan’s flag–an act considered unlikely because of the (perceived) need to change the ROC Constitution (which describes the flag), and also because of the probable reluctance of Tsai Ying-wen and other political leaders to do anything so provocative.

An interesting wrinkle comes from the actual text of the ROC Constitution, which simply states (Article 1, Par. 6) that “The national flag of the Republic of China shall show a red field with a blue sky and a white sun in the upper left corner.” (The Chinese original avoids one ambiguity of the English, in that it makes clear that both the blue sky and the white sun are to go in the upper-left.)

Notice what is not specified:

(1) How to draw the white sun (e.g., with a smiley face, and holding two scoops of Raisin Bran?)
(2) How to draw the blue sky
(3) That the flag as a whole ought to be rectangular

All these details are included in the 1954 “National Emblem and National Flag of the Republic of China Act,” which gives design instructions for producing the familiar ROC flag. Since this is only a law, and not from the Constitution itself, it would be theoretically possible to effectively change the flag design without the necessity of amending the Constitution.

[For example], it is possible, without amending the Constitution, to draw the “white sun” mentioned in the ROC Constitution in such a way as to honor Taiwan’s aboriginal heritage rather than the KMT.

Here was my reply to the reader:

Thanks for the email. My initial thought is that assuming this passes the political hurdle, the legal basis for changing the flag by merely changing the law and not the Constitution is still weak. Even though the Constitution doesn’t spell out the exact design of the flag, e.g., what the sun should look like, one still has to look at the intent of the constitutional provision, which was to describe the ROC flag as it existed at the time the Constitution was passed, which had the same design as it does now as far as I know. I think it is highly unlikely the Constitutional Court, if they were tasked with interpreting the constitutionality of an amended flag law, would only look at the text itself.

I don’t really have anything to add to my original reply, but perhaps readers may want to weigh in with their legal interpretation.

The News Lens has been authorized to repost this article. The piece was first published by Taiwan Law Blog.

First Editor: Edward White

Second Editor: Olivia Yang