In March 2006, FPRI’s Asia Program held a conference on “Constitutional Change and Foreign Policy in East Asia.” Panels focused on Japan’s contemplated revisions to its “pacifist” constitution; China’s much-amended constitution, the increasing discourse there about constitutionalism, and its implications for China’s foreign policy; Taiwan’s controversial process of constitutional revision and its implications for the island republic’s international status and external relations; and the impact on regional states’ constitutions and foreign policies of American constitutional ideals and U.S. efforts to promote constitutional change abroad. The conference was co-sponsored by the University of Pennsylvania Law School and the National Constitution Center. Articles based on some of the presentations will appear in Orbis, FPRI’s quarterly journal of world affairs.

Japan

Christopher Hughes (University of Warwick) argued that the anti-militarism principles in Japan’s Occupation-era constitution—principally in article IX and the preamble—still powerfully constrain Japan’s use of force and international security role despite years of creative interpretation of those provisions, recent tightening of U.S.-Japan security ties, and expansions of the Japan Self-Defense Forces’ activities abroad. The government maintains that the nation has a right to collective self-defense that it has been unable to exercise fully because of constitutional restrictions. Decades of reinterpretation have asserted Japan’s right to individual self-defense and tolerated de facto collective self-defense through alliance-like cooperation with the United States.

Recently, reinterpretation has come to seem inadequate in light of changes in Japan’s political system, new regional challenges (including North Korean nuclear programs, cross-strait tensions, and China’s rise), and post-9/11 global security challenges which place new demands on Japan. Commentator Toshihiro Nakayama (Brookings Institution) emphasized the 1991 Gulf War and North Korean crises as having prompted Japan to focus on collective security and consider constitutional revision. In domestic politics, Hughes added, security issues have become “depolarized” as the opposition parties and the factions within the ruling LDP who oppose revision have faded and the idea of constitutional revision has entered the political mainstream.

Reinterpretation has been largely exhausted as a way to authorize the larger international security role that a wide swath of the Japanese political spectrum now favors or accepts. Those who favor a more robust role believe that constitutional restrictions impose unrealistic and unwise restraints on Japan’s participation in de facto collective security in the Gulf War, after 9/11, and in response to regional crises, especially as U.S. force realignment required closer bilateral cooperation. Even some opponents of a greater security role favor constitutional revision as preferable to stealthy and democratically unaccountable expansions of Japan’s military commitments and actions.

Commentator Kenneth Port (William Mitchell School of Law) asserted that the anti-militarism of Japan’s constitution is weaker than many think. Tracing the history of drafts of article IX and noting differences between the constitution’s Japanese version and the English version used in many foreign analyses, Port concluded that nothing in the text prevents the development of a much larger military, so long as it is for “defensive purposes”, the elasticity of which term is suggested by the SDF’s recently growing missions and Japan’s large military budget. Constitutional revision thus might be more a political than a legal necessity to support an expanded Japanese security role.

Hughes sketched partisan strategies for grappling with constitutional revision, focusing on the LDP’s agenda. The LDP is seeking recognition of (i) the SDF as a military not limited to purely self-defense purposes and not precluded from international security roles and (ii) Japan’s full right to self-defense. A second stage in the LDP strategy is to use the Diet to assert Japan’s right to participate in collective self-defense. As mere legislation, this would require only a parliamentary majority, not the two-thirds supermajority and ratification by popular referendum that constitutional amendment demands. The legislation’s passage might be secured through collateral understandings with the LDP’s coalition partner (Komeito) or with defections from the more conservative wing of the divided principal opposition party, the Democratic Party of Japan. Such changes would permit Japan to engage in many types of military operations, making it a “normal” state.

If only the first stage of the LDP strategy succeeds, the changes to the constitution would still mark a significant watershed and lay the foundation for future reinterpretations or legislation to permit a larger international security role. But Hughes noted that even the first stage could fail if the LDP cannot bring Komeito along, if the DPJ remains united in opposition, if the LDP’s pro-constitutional revision wing loses its nerve in taking on bureaucratic interests, or if public support erodes. This outcome would severely constrain and perhaps roll back Japan’s security role.

Nakayama pointed to a similar cleavage in debates over constitutional reform between those on the liberal end of the Japanese political spectrum who view the constitution as effective or “alive” and favor strict construction of the charter’s pacifist provisions and others of a more conservative stripe who view the constitution as ineffective or “dead,” and tend to favor constitutional revision.

The panelists agreed that the Japanese public was generally open to the idea of constitutional reform. Nakayama noted significant division over changing article IX, and argued that strong forms of nationalism had only narrow support. Port asserted that the public did not have any strong, well-formed opinions either way on the issue. The panelists agreed that the very capable Prime Minister Koizumi was unlikely to achieve constitutional revision before his pledged date for stepping down in September 2006.

Finally, Hughes assessed the implications of possible constitutional revision for Japan’s foreign policy. The U.S. would have good reason to welcome the LDP’s proposed constitutional changes, which correlate with an emphasis on alliance with the U.S. Constitutional revision also resonates with recent statements by LDP acting secretary general Shinzo Abe that have been taken as asserting a strengthened Japanese interest in Taiwan’s security. Still, the LDP’s preferred revisions could make Japan more likely to define and pursue its own interests independently.

Constitutional reform also could increase tensions in the region. Nakayama noted that an idealistic reading would see constitutional revision as intended not to make Japan a “normal power”—and potential perceived threat to other states—but rather to give it the military means necessary for it to become a “global civilian power,“ sitting as a permanent member of the Security Council, addressing issues of nation-building and peace-keeping, and so on. Hughes, however, argued that if Japan takes on a more “normal” role, it will cause unease in China, South Korea, and other regional states. Moderator Gilbert Rozman (FPRI and Princeton University) emphasized the continuing importance of the “history issue,” especially in South Korea and China, where many will doubt those who portray article IX-related reforms as contributing to Japan’s becoming a “responsible player.”

China

Jacques deLisle (FPRI and University of Pennsylvania) and Cheng Li (Hamilton College) discerned in the PRC’s constitution, especially economics-focused amendments adopted in 2004 and longer-standing provisions relating to sovereignty, insights into China’s foreign policy. Recent developments in China also suggest the possibility of an emergent—and largely informal—constitutionalization of China’ foreign policy making. The PRC constitution is famously effete, and the recent flowering of constitutional discourse and debate among the top leadership and the elites has focused primarily on domestic issues, but there still are signs of incipient constitutionalism.

Although, and partly because, the Chinese constitution is more programmatic or aspirational than operative, its provisions reveal and may help to entrench foreign policy priorities. One of these is China’s pursuit of an international environment conducive to market-oriented economic development and deepening integration with the international economy. Many amendments reflect market economy-related principles, including provisions redefining the nature of China’s economy (as a socialist market economy), enhancing protection of private property (raising it to formal near-equality with other forms of property and limiting expropriation), and enhancing the status of entrepreneurs (through the constitutionalization of Jiang Zemin’s “three represents”). Policies of engaging with the international economy and seeking a favorable environment for doing so are immanent in these market-oriented elements and in other provisions that specifically promise protection of foreigners’ property rights and that declare China’s commitment to opening to the outside world.

The other core foreign policy priority immanent in the constitution is protecting China’s sovereignty against perceived encroachment. The constitution articulates a robust vision of the integrity and inviolability of China’s sovereign territory and imposes duties on all Chinese to safeguard the country’s unity and to accomplish reunification. More specifically, the constitution’s provisions governing the autonomous regions for ethnic minorities and the special administrative regions implemented in Hong Kong and Macao and envisioned for Taiwan similarly embrace a strong, centralized conception of sovereignty, with any special privileges being at the sovereign’s discretion. Because this conception of Chinese sovereignty risks complicating China’s foreign relations and especially its relationships with key providers of capital, the constitution has had to balance its two principal imperatives.

Commentator June Teufel Dreyer (FPRI and University of Miami) took a darker view of the territorial sovereignty strand in China’s constitution, pointing to the 2005 Anti-Secession Law targeting Taiwan and an earlier law claiming sovereignty over disputed islands in the Pacific as dangerously aspirational. Dreyer argued that these territorial and other provisions of the Chinese constitution were largely empty words-something that dissidents at the beginning of the reform era and amid the 1989 Tiananmen demonstrations had pointed out at great peril to themselves. Worse, they might provide imperatives or at least pretexts for aggression. DeLisle agreed that the constitution’s long-standing civil liberties and democratic provisions were not to be taken seriously and that the provisions on which he and Li focused do not have reliable effects, much less full implementation. Nonetheless, not all constitutional provisions are equally empty. Many relevant participants in the political and legal systems know which ones they can invoke and how far they can press them and have recently done so without landing in jail. Dreyer maintained that the constitution was declining in importance and its commitment to openness to foreign investment and trade was imperiled by rising regionalism and local protectionism. DeLisle and Li and commentator Douglas Grob (University of Maryland) noted that the formal constitution and China’s de facto structural constitution endorsed the delegation of power that gave rise to such phenomena and that part of the new wave of constitutionalist thought addressed concerns such as unaccountability and corruption in local government.

More speculatively, Li and deLisle argued that China might be developing a kind of informal or inchoate constitutionalism that could constrain foreign policymaking and other exercises of governmental power. Depicting any such constitutionalization as a political and at-most emergent process, they pointed to several factors that favor its development. From early in his tenure as party general secretary and president, Hu Jintao stressed the importance of the constitution in his approach to ruling the country, ordered the top elite to study the constitution, encouraged broader elite and popular constitutional discourse, and presided over unusually extensive amendments to the constitution. Intellectuals-including some well-connected ones-have pressed for the development of a meaningful constitution. Public discussions of constitutionalism have surged, seemingly surpassing prior rounds of heightened attention to such matters.

The paper authors and Grob noted how Chinese courts have become more constitutionally adventurous, with local courts using the constitution to fill gaps in legislation and overturning local laws for non-conformity with national laws. To be sure, such developments faced sharp political limitations, with the Supreme People’s Court and China’s political leaders responding by limiting lesser courts’ forays into constitutional litigation. While seeing signs of hope in such local courts, Grob also emphasized the crucial problem of the absence of a constitutional court or a politically strong judiciary. He suggested the possibility of a popular constitutionalism supporting a selective constitutionalization in which courts partly determine which issues are resolved politically and which are resolved constitutionally or judicially. Foreign policy issues might be especially likely to fall into the former category, however.

More important, Li and deLisle argued, China’s leaders have pragmatic political reasons to increase the previously minimal commitment to constitutionalism. Times of leadership transition present opportunities for new directions. Having chosen to make the constitution something of a centerpiece, Hu cannot abandon that position without cost, either within elite circles or among the broader public. Among the top elite, the constitution and constitutionalism have become an issue and a weapon in wrangling between an elitist wing of former president and general secretary Jiang Zemin’s closest followers and the more populist group centered on Hu and Premier Wen Jiabao. Constitutionalism has not neatly served either side’s ends. It partly reinforces and is partly at odds with Hu’s populism (and particularly its nationalist strain in foreign policy). The 2004 constitutional amendments contained policy elements favored by both camps, but especially by the elitists (particularly in supporting integration with the international economy).

The broad reformist consensus, the bounded nature of conflict between these two groups, and their partial specialization by policy area may be creating tolerance for informal, quasi-constitutional rules of the game. The rise of lawyers among China’s political elite might lead to increased openness to more formal constitutionalization although Dreyer and others were skeptical that professional education reliably predicted politics. Moreover, deLisle and Li argued, China’s leaders today, and many intellectual and even public constituencies who influence them, may see in constitutional development a partial solution to China’s worrisome “institution deficit”. Constitutions, deLisle stressed, create, as well as limit, power. Strikingly, some influential proponents of constitutionalism argue that greater constitutionalism at home will strengthen China’s ability to achieve its foreign policy goals, including by weakening the Taiwanese case against reunification.

Grob and others noted the fundamental problem posed for Chinese constitutionalism by the special role of the CCP. The party has had its special leading role and its ideology written into the constitution and retains its own charter as something of a parallel constitution for party members and organs.

Although panelists concurred that constitutional constraints on foreign policy making were not strong, Li and deLisle disagreed with more skeptical participants over whether the Chinese constitution reflected anything significant about Chinese foreign policy and politics, and whether recent seeming sprouts of constitutionalism might eventually-and in conjunction with more informal quasi-constitutional institutionalization-develop into meaningful constitutionalization of Chinese foreign policy making and governance.

Taiwan

Vincent Wei-cheng Wang (University of Richmond) and Jacques deLisle analyzed Taiwan’s ongoing process of constitutional reform. Accepting that both adopted and contemplated amendments are partly about improving domestic governance, they argued that many of them also engage the question of Taiwan’s international status. Still, Taiwan’s constitutional reform is not likely to precipitate a major crisis in U.S.-PRC-Taiwan relations, given its domestic legal form (which parallels the PRC’s Anti-Secession Law and the U.S. Taiwan Relations Act), international reaction to President Chen Shui-bian’s moves; and domestic political constraints in Taiwan.

The paper writers and commentator Thomas Ginsburg (University of Illinois) agreed that Chen and his ruling party’s calls for constitutional change did not specifically address “independence” or “status” questions, but focus on fixing flaws that have harmed the quality of governance in Taiwan. Wang, deLisle, and commentator Yuan-kang Wang (National Cheng-chi University and Brookings Institution) noted that the key arguments from Chen and the Democratic Progressive Party for a new constitution are that the existing ROC constitution, drafted on and for the mainland in 1947, ill fit contemporary Taiwan; that the prior piecemeal approach to constitutional reform, which had yielded seven rounds of amendments, was inadequate for the sweeping reforms Taiwan needed; and that creating a new constitution would deepen democracy in Taiwan, partly by giving the people a direct role in constitution-making (including through popular referenda that will be required for future amendments). Ginsburg emphasized the paralysis that the constitutional order produced by prior amendments had generated in an unanticipated era of divided government, with the DPP holding the presidency and executive and the former ruling Kuomintang and its Pan-Blue allies controlling the legislature. Several panelists detailed the proposals for constitutional revision that focus on domestic institutional matters such as the size and efficiency of the legislature; the allocation of power and accountability among the legislature, president, and premier; rules for presidential elections; and abolition of the National Assembly and Control and Examination Yuan.

Nonetheless, deLisle and Wang saw several elements in Taiwan’s constitutional reform debates as entangled with the question of declaring statehood. Such a declaration is a vital, if rarely articulated, international legal criterion for state status. Wang noted that the DPP sees this matter as having been addressed by its 1999 resolution declaring that Taiwan is a sovereign independent state now called the Republic of China, and that any change in the status quo could be undertaken only by a referendum manifesting the consent of the Taiwanese people.

Still, constitutional reform debates have raised the declaration issue in a potentially provocative context. DeLisle stressed that Chen’s so-far unsuccessful push for a new constitution, as opposed to a merely revised one, raised the question of whether a new state was thereby being created. While a new constitution would not necessarily mean a new state, a merely revised constitution of the ROC means, as a matter of legal principle and political cover, that there would not be a founding document for a newly established state. Old states sometimes get new constitutions; new states do not continue under old constitutions.

Any amendments that transgressed the “four noes” articulated in Chen’s 2000 inaugural speech, and reaffirmed in 2004, also would move toward, or to, a constitutional declaration of statehood. A declaration of independence would cross this Rubicon. A change in the national name to “Republic of Taiwan” would go as far or almost as far. A bit more ambiguous would be the constitutionalization of former President Lee Teng-hui’s characterization of cross-Strait relations as a special type of “state-to-state” relations. A referendum on any change in the status quo concerning independence or unification could be a means to declare new, formally independent statehood for Taiwan. The constitutional amendment that made popular referenda an open-ended tool for constitutional reform opened the possibility that referenda could provide the means for the most legally formal and orthodox assertion of independent statehood. Other amendments, such as the one that eliminated the National Assembly, and some contemplated but unenacted amendments also had implications for statehood in their symbolic severing of Taiwan’s constitution from its pan-China ROC origins and democratic indigenizing of the charter.

Further, constitutional reform debates in Taiwan also addressed the four classic attributes that matter under international law and in international politics for Taiwan’s claim to statehood and its perquisites: territory, population, autonomous and effective government, and capacity for international relations. The constitution that Chen and others envisioned and that prior rounds of amendments partly achieved purported to reach only Taiwan and its offshore islands. It was only for the people of Taiwan. Constitution-making (and even mere revision) is arguably the highest sovereign act, undertaken by a government that thereby shows itself to be unanswerable to another, higher government. The March 2004 “defensive referenda” that overlapped the constitutional reform debate asserted Taiwan’s capacity to engage in international relations in ways quintessential for a full-fledged state. The initiatives, which failed at the ballot box, asserted Taiwan’s right to defend itself against China and to negotiate with the PRC as an equal. (The PRC’s 2005 Anti-Secession Law includes a point-by-point rebuttal of these aspects of Taiwan’s constitutional reform agenda.) Taiwan’s constitutional reengineering project also has invoked novel or collateral factors that matter in international political and legal views of state-like status, including democracy, human rights, constitutionalism and self-determination.

Panelists agreed that these constitution-related developments might seem to portend a crisis in cross-Strait and U.S.-PRC-Taiwan relations. Vincent Wang stressed that the U.S. and other foreign observers worried about what Chen might do next, especially in the wake of his early 2006 moves to eviscerate the National Unification Guidelines and the National Unification Council-undercutting the “one not” that had accompanied his “four noes.” Ginsburg argued that Chen appeared to be “gambling for resurrection”: stymied by divided government and political polarization in Taiwan’s problematic constitutional structure, he might be tempted to engage in “double or nothing” bets as his best prospect for redeeming his party’s political fortunes and his own legacy. These might include gambits addressing Taiwan statehood issues. Several participants noted that Beijing’s desire to host a problem-free Olympics in 2008 and the end of Chen’s term a few months earlier might create a perception that the next two years offer the last best window for pressing Taiwan’s status claims. This prospect for destabilizing moves might be enhanced by a U.S. presidential campaign in which China policy could be a factor.

Still, panelists agreed, the prospects that Taiwanese constitutional reform would lead to a major cross-Strait or international crisis were small. DeLisle and Wang noted that all of the constitutional amendments and serious proposals stopped short of what they might have said in addressing the five key criteria of statehood. Taiwan’s constitutional reforms are acts of domestic law-making, as are China’s Anti-Secession Law and the U.S.’s Taiwan Relations Act.  Because Taiwan, the U.S. and China in principle insist on a relatively sharp distinction between domestic and international law,  the domestic legal forms offered insulation from outside critique and crises, or at least helped give the parties the “fig leaves” they wanted to eschew treating Taiwan’s constitutional reengineering project as a provocation requiring a crisis.

Ginsburg, Yuan-kang Wang, and the paper-writers agreed that political factors loomed large in explaining the limits to advancing statehood claims or provoking international tension through constitutional reform. Taiwan’s domestic politics imposes many constraints, including the electorate’s broad support for the cross-Strait status quo; the increasingly complex connections among Taiwanese identity politics, cross-Strait economic integration, and popular views of mainland relations; the Pan-Blue’s control of the legislature; the high procedural hurdles, including legislative super-majorities and popular referenda with 50 percent turnout, for further constitutional reform; the DPP’s poor prospects in the 2008 election; and the fact that major constitutional change in any democracy is protracted and difficult. International reaction also imposes powerful checks, including the Bush administration’s displeasure with Chen’s seeming efforts to alter the cross-Strait status quo and imperil U.S.-PRC relations, pursuit of the defensive referenda and abandonment of the “one not”; the broader international sense that constitutional reform has implications for claims about Taiwan’s international status and security; Beijing’s sharp warning to Taiwan in its Anti-Secession Law; and the chilly international reaction to aspects of the Anti-Secession Law that seemed to threaten peace and stability.

U.S. Constitutionalism and East Asia

William Burke-White (University of Pennsylvania Law School), Thomas Ginsburg, Douglas Grob, and Robert Reinstein (Dean, Temple University Law School) addressed the U.S. effort to promote constitutional government abroad (especially in East Asia), its relationship to U.S. foreign policy, and post-9/11 developments.

The panelists agreed that U.S. policy in East Asia and more broadly has long sensibly favored promoting constitutional government and should continue to do so. Burke-White pointed to the implicit centrality of constitutionalism in the Bush administration’s 2006 National Security Strategy, which stresses fostering freedom, justice, and human dignity based on free governments accountable to their people, and creating a community of democratic states. Ginsburg noted that, in East Asia, creating broadly American-style constitutions has been an aim at least since the postwar occupation of Japan. Reinstein added that significant U.S.-supported programs in recent years have educated Chinese legal elites about constitutionalism, including especially the U.S. version.

Panelists cautioned against promoting an overly narrow, specifically U.S.-like version of constitutionalism. Burke-White and Ginsburg favored seeking effective democratic government and limited government. Burke-White stressed the importance of fostering government protection for civil society and human rights. Reinstein argued for focusing on the rule of law, the executive branch’s subjection to the law, and a judiciary that provides a level playing field for resolving disputes between individuals and the state. A narrowly or exactingly U.S.-centric notion of a desirable constitution reflects a misunderstanding of which aspects of the U.S. experience are essential elements of constitutional governance, and a failure to appreciate that many fully democratic and constitutional regimes do not closely resemble the U.S.’s. Pressing other states to adopt features such as American-style federalism, separation of powers, judicial review, and separation of church and state can be demanding that they undertake impossible or unnecessarily difficult tasks. Still worse, it can mean pursuing changes that can have perverse effects such as encouraging excessive concentration of power in the executive or excessive reliance on courts that are politically unable to play their assigned role.

U.S. policies of promoting constitutional governance abroad are more effective when they do not simply dictate or prescribe. Opportunities to impose constitutions, as in postwar Japan, are not likely to recur. Iraq and Afghanistan provide recent examples of limits to the U.S.’s ability to shape new constitutional orders. The impact of U.S. constitutional ideals is greatest where they stand as appealing examples. Reinstein noted the appeal of American notions of liberty and justice to the Chinese student movement in 1989 and of aspects of the American model to Chinese jurists today. Referring partly to the experience of East Timor, Burke-White emphasized the importance of persuading the elites in states adopting new constitutions. Reinstein stressed the importance of education programs.

In the wake of 9/11, promoting constitutionalism abroad has been recast as a goal more intimately related to national security, Burke-White and Ginsburg noted. Several participants argued that other recent developments in the American constitutional order, however, have undermined that project. The appeal of the U.S. model has faded as those preaching its virtues increasingly have encountered criticism of a system that has permitted indefinite detentions of citizens, lower procedural protections for alleged enemy combatants, and even torture. So too, the democratic luster of the American prototype has suffered in the aftermath of the Supreme Court’s role in deciding the outcome of the 2000 presidential election. Suspicions have grown that American constitutionalism has become an instrument of the war on terror, narrowly serving U.S. security interests without adequate concern for the best interests of targeted states. Post-9/11 changes or perceived changes in the U.S.-principally those that have enhanced executive power-risk conferring legitimacy on repressive and ultimately anti-constitutionalist features in foreign systems, including expansive executive power in the name of responding to threats.

The connection between U.S. interests in promoting constitutional government abroad and other U.S. foreign policy goals is complex. Participants agreed that democratic, accountable, human rights-protecting constitutional regimes abroad generally enhance the U.S.’s national security and serve American interests. Such regimes are less likely to harbor terrorists or to be aggressive, rogue, or failed states. Ginsburg noted that even China’s modest constitutional development might serve American interests, contributing to Beijing’s restraint toward Hong Kong and Taiwan, and that by redressing problematic features of its governmental structure, Taiwan’s project of constitutional reform might reduce the risk of Taiwanese political leaders pursuing destabilizing cross-Strait policies.

Nonetheless, areas of tension persist between constitutionalism and other U.S. foreign policy aims. For example, Ginsburg and Reinstein noted that the U.S. almost immediately found that article IX in Japan’s constitution, which the U.S. had imposed, impeded American security aims in East Asia during the Korean War, and that this remains true. Ginsburg added that a democratic, constitutionally governed China might well maintain an aggressive policy toward Taiwan. Reforms to article IX in Japan’s constitution might trigger responses from China or other regional states that would ill serve U.S. interests. Grob suggested that, in China, quasi-federalist localization of responsibility for social unrest, or the leadership’s response to the courts’ expansions of judicial review, might in the end impede rights-protecting developments that the U.S. favors even though federalism, judicial review and citizens’ rights are features favored by the U.S.

Still, the greatest concern for all the panelists was that the virtues of the core, indispensable elements of the U.S. constitutional model have fallen into increasing ill repute largely due to post-9/11 changes in the U.S. constitutional order and its presentation and perception abroad, and that this is an unfortunate development for U.S. foreign policy and for many of the countries that are foci of American foreign policy in East Asia and beyond.