A Roadmap for Constitutional and Legal Reform in the Republic of China Before, During and After a Democratic Transition on the Mainland: Obstacles in Current Law, Legislative Competence and a Phased Implementation Plan

v0.5 | 2026-10-17

Research status: Published. This article is academic legal research; it does not constitute an authorization, decision or legal opinion of any authority.

Abstract

This article takes as its objects of study the Constitution of the Republic of China and its Additional Articles, the Act Governing Relations between the People of the Taiwan Area and the Mainland Area (hereinafter the “Cross-Strait Act”), the laws on presidential and public-office elections, the laws on nationality and household registration, the Local Government Act, the Referendum Act and the Constitutional Court Procedure Act, and pursues one concrete question: should a democratic transition take place on the Mainland, which preparatory measures can the current legal order of the Republic of China (Taiwan) support, and which changes could come into being only through legislation, constitutional amendment, a referendum or a new democratic mandate?

The analysis proceeds in four steps: it first establishes the normative hierarchy, then the allocation of competences, next compares the procedural thresholds, and finally sets out the sequential dependencies of implementation. The principal findings are as follows. First, Articles 2 and 4 of the Additional Articles place the presidential electorate and the 113-seat structure of the Legislative Yuan at the constitutional level; neither political change on the Mainland, nor population registration, nor an extension of administrative jurisdiction can alter them automatically. Second, territorial change (Additional Articles, Article 4(5)), constitutional amendment (Article 12) and cross-strait agreements on political issues (Cross-Strait Act, Article 5-3) are three distinct procedures; their thresholds are similar, but they differ in the scope of eligible voters, their legal rank and their mechanisms of entry into force, and none of them can substitute for another. Third, the Cross-Strait Act defines “people of the Taiwan Area” and “people of the Mainland Area” by household registration and, through its Articles 9-1 and 21 together with Article 20(2) of the Presidential and Vice Presidential Election and Recall Act, imposes restrictions of differing intensity on the political eligibility of people of the Mainland Area; among these, the restriction on presidential candidacy does not lapse with time. Fourth, Constitutional Court Judgment 114-Hsien-Pan-1 (December 19, 2025) declared Article 4(3), Article 30(2) to (6) and Article 95 of the Constitutional Court Procedure Act, as amended and promulgated on January 23, 2025, unconstitutional and void; but three Justices who did not take part in the proceedings publicly maintained that the judgment is null, so that the institutional legitimacy of constitutional adjudication itself has become an unresolved issue, which directly affects the predictability of any reform plan that seeks judicial confirmation.

On this basis, the article proposes a conditional roadmap: each reform must specify its legal basis, the competent authority, the triggering conditions, the necessary legislative amendments, public deliberation, avenues of redress and verifiable evidence of entry into force. The article does not presuppose unification, federation, dual government or any other political outcome.

Keywords: Constitution of the Republic of China; Additional Articles of the Constitution; democratic transition on the Mainland; Cross-Strait Act; constitutional amendment referendum; electoral eligibility; household registration; Constitutional Court; local self-government

1. Introduction: Research Questions, Scope and Cross-Project Boundaries

(1) Statement of the Problem

Should a democratic transition take place on the Mainland, it would simultaneously touch on questions of personal status, administrative jurisdiction, cross-strait political agreements, the composition of central representative bodies and constitutional legitimacy. These questions are intertwined, but in law they must be dealt with separately. Current ROC law provides some procedures and a special legislative authorization, but it has not, and could not have, put in place in advance valid organizational and electoral arrangements for every future scenario.

Accordingly, the question this article answers is not “which political outcome ought to occur” but “under different factual premises, which authority may do what, on the basis of which norms, and which procedures must be completed first.” Specifically, there are five research questions:

• Before a transition, which legal research, drafting of model laws and consultative mechanisms may lawfully proceed in advance under current law?
• In the early stage of a transition, how can fundamental rights, judicial and administrative continuity and public services be safeguarded, and emergency powers be restrained?
• What obstacles do the current Additional Articles, the seat allocation of the Legislative Yuan, the presidential election, the constitutional amendment procedure and the Cross-Strait Act place in the way of Mainland representatives taking part in central institutions?
• If a democratic government on the Mainland claims to restore ROC constitutional government and the existing institutions of the Republic of China (Taiwan) do not agree, how should a unilateral political claim, actual jurisdiction, a constitutional agreement and a democratic mandate be distinguished?
• Which matters require ordinary legislation, and which require constitutional amendment, judicial review, bilateral negotiation or new democratic approval?

(2) Scope and Cross-Project Boundaries

This article (ROC-LEG-01) deals specifically with the texts of current law, the competences of statutory authorities, constitutional amendment and legislative procedures, legal obstacles and a phased implementation path. The division of labour with related projects is as follows; where they overlap, cross-references are used and arguments are not repeated; where conclusions conflict, the conflict is entered in the cross-project conflict register rather than silently overridden:

• ROC-CONST-01: constitutional legitimacy, state continuity, democratic mandate, and the constitutional crisis created by competing ROC governments. Section 5 of its v1.2 supplementary draft has already set out the review outline for J.Y. Interpretations No. 261 and No. 328; where this article uses these two interpretations, it takes only their implications for procedure under current law.
• C-T04: historical comparison from the provincial consultative assemblies of the late Qing to the provincial assemblies of the Republican period. Chapter 7 of this article deals only with the provincial system under current law; historical conclusions cite Chapter 8 of C-T04-P02 (the expansion of statutory seat quotas is a quantifiable fact; actual representativeness must be judged separately on the basis of rosters and meeting records).
• ROC-TRANS-02: political scenarios of party and civil-society participation. Its authoritative draft could not be located in this round; this article therefore treats it only as a scope exclusion and makes no item-level citation (see limitation L-7 in Chapter 14).

“Republic of China (Taiwan)” as used in this article refers to the state institutions actually operating under the current constitutional order; the official names of laws, provisions and institutions (such as “Taiwan Area”, “free area” and “Mainland Area”) follow the official texts throughout and are not rewritten.

2. Research Method, Evidence Grades and Citation Rules

(1) Legal Sources and Verification Method

The primary legal sources are the current provisions in the Laws & Regulations Database of the Republic of China (Taiwan) (law.moj.gov.tw) together with their “amendment history” pages, the original texts of interpretations and judgments on the Constitutional Court website (cons.judicial.gov.tw), and the Presidential Office Gazette. Every statutory proposition in this draft was re-read against these official pages between October 16 and 17, 2026 (the database states that its consolidation of laws and regulations runs to October 8, 2026). News reports are used only to record facts not contained on official pages (such as the public legal opinion of three Justices), and this is indicated in the notes.

(2) Grades of Propositions

Every substantive proposition is marked with one of the following grades:

• [A] expressly stated in a statutory provision or in the operative part of a judgment;
• [B] a legal interpretation derived from express provisions and the normative hierarchy;
• [C] contested, pending confirmation by a judicial or legislative authority;
• [D] a policy design or research proposal that has not yet received any authorization.

B, C and D must not be written as A. The time periods (pre-transition, early stage, transitional period, long term) are only scenario analysis, not legally self-executing deadlines.

(3) Citation Rules

A common error in legal citation is to attach a law’s “most recent amendment date” to provisions that the amendment in question did not touch. This article therefore annotates at the article level: each cited provision states the promulgation date of its most recent amendment, with promulgation and entry-into-force dates listed separately where they differ; the most recent amendment date of the law as a whole is recorded separately. For provisions that have been invalidated by a judgment but whose text is still displayed in the database (Article 30(2) to (6) of the Constitutional Court Procedure Act), the operative part of the judgment prevails.

3. Literature Review and Points of Contention

Literature for this chapter: Part C of the References.

This chapter does not judge which political programme is preferable; it only organizes the scholarly debates directly relevant to the legal analysis of this article. The bibliography is in Part C of the References. The chapter’s references to the various scholarly positions are limited to their overall arguments, without page-level citation (see limitation L-2 in Chapter 14); its function is to mark where the debates lie, and the legal conclusions of this article rest on primary legal sources.

(1) Amendment Rigidity and Democratic Legitimacy

Comparative constitutional research on the difficulty of amendment (Lutz 1994; Ginsburg, Elkins and Melton 2009; Albert 2019) indicates that the higher the amendment threshold, the more stable the constitution, but also the more likely it is that major political change will be pushed outside the amendment procedure. The current Article 12 of the Republic of China requires a quorum of three-quarters of the Legislative Yuan and a resolution of three-quarters of the members present, followed by the approval of more than half of the electors in the free area (counted against the total number of electors); in comparative terms this is an extremely rigid amendment procedure. This rigidity has a twofold meaning for this article. On the one hand, it protects the constitutional standing of Taiwan’s existing electorate: no plan to bring Mainland voters into the central electorate can bypass them. On the other hand, if political change moves far faster than the amendment procedure could possibly be completed, the temptation of “extra-constitutional constitution-making” arises. Theory on the limits of the amending power (Roznai 2017) echoes the core principles of the “liberal democratic constitutional order” referred to in J.Y. Interpretations No. 499 and No. 721, and forms the background to the discussion of the “unamendable core” in Chapter 10.

(2) Cross-Strait Political Agreements and Democratic Oversight

Parliamentary oversight of cross-strait agreements became a constitutional issue after the 2014 controversy over the Cross-Strait Service Trade Agreement. J.Y. Interpretation No. 329 expressly excluded cross-strait agreements from its definition of “treaty”, leaving a gap as to the Legislative Yuan’s power of review; Article 5-3 of the Cross-Strait Act, added in 2019, filled that gap by statute for political-issue agreements. The point of contention is whether the three-quarters threshold and the nationwide referendum established by Article 5-3 create, at the statutory level, a procedure akin to constitutional amendment, and how the two sets of procedures combine if the content of an agreement also touches the Constitution. This article adopts the “separate fulfilment” view (Chapter 5), but acknowledges that this view has not yet been judicially confirmed [C].

(3) Territory, Citizenship, Household Registration and the Right to Vote

Theoretical literature on citizenship and voting rights (Bauböck 2005; López-Guerra 2014) distinguishes the different grounds of legitimacy for nationality, residence and the franchise. The distinctive feature of the ROC legal order is that it uses household registration rather than nationality as the criterion dividing “people of the Taiwan Area” from “people of the Mainland Area” (Cross-Strait Act, Article 2), and uses household registration and length of residence as the basis for calculating the right to vote and eligibility to stand in presidential elections (Presidential and Vice Presidential Election and Recall Act, Articles 4, 12 and 20). J.Y. Interpretation No. 618 reviewed, under “substantive equality” and the principle of proportionality, the differential treatment based on years of household registration in the “serving as public functionaries” part of the first clause of Article 21(1) of the Cross-Strait Act, and upheld it; the interpretation did not extend to the part concerning candidacy (see Chapter 6, section (5)). This line of inquiry determines the structure of Chapter 6 of this article.

(4) Constitutional Adjudication and Separation of Powers

Research on constitutional courts in new democracies (Ginsburg 2003; Yeh 2016) regards Taiwan’s Grand Justices as key arbiters in the democratic transition: J.Y. Interpretation No. 261, which ended the indefinite tenure of the first-term central representatives, is a classic example of judicially driven transition. Judgment 114-Hsien-Pan-1 shows, by contrast, that the composition and deliberation thresholds of the Constitutional Court itself may also become objects of political conflict. For this article, this means that “referring the matter to the Constitutional Court for confirmation” cannot be treated as a procedural step whose risks are known.

(5) Transitional Constitutionalism and Institutional Continuity

Research on transitional justice and transitional jurisprudence (Teitel 1997; Teitel 2000) emphasizes that law in a period of transition must both break with the old order and maintain enough continuity to safeguard the rule of law. International-law research on state continuity and identity (Marek 1954; Crawford 2006) and the theory of “post-sovereign constitution-making” (Arato 2016) provide a framework for understanding claims to “restore” or “continue” ROC constitutional government. This article adopts only those conclusions that bear on procedure: a claim of continuity does not in itself generate institutional competence under current law. The substantive argument on continuity belongs to ROC-CONST-01.

(6) Distinguishing Constitutional Legality from Claims for Political Reform

The last group of literature concerns method: constitutional interpretation and constitutional design are different types of argument (Elster 1995; Lerner 2011). The A/B/C/D grading of this article exists for precisely this reason. Any roadmap content at grade D is only a proposal for legislative and judicial authorities to test, not a description of current law.

(7) Unresolved Doctrinal Issues

Drawing together the literature above and the official materials, this article identifies six issues that remain unsettled; each is discussed in the corresponding chapter:

• X-1: Whether the scope of “electors in the free area” for a territorial-change proposal can be adjusted by statute (Chapter 4).
• X-2: The order of and relationship between the Article 5-3 political-agreement procedure and the Article 12 amendment procedure when both are triggered at the same time (Chapter 5).
• X-3: Whether the permanent restriction on candidacy (Presidential and Vice Presidential Election and Recall Act, Article 20(2)) that applies to “people of the Mainland Area” after they acquire household registration in the Taiwan Area is consistent with the principle of equality; J.Y. Interpretation No. 618 addressed only the part concerning public functionaries (Chapter 6).
• X-4: Whether, under the current Article 9 of the Additional Articles, the self-governing character of the province can be restored by statute (Chapter 7).
• X-5: The dispute over the validity of Judgment 114-Hsien-Pan-1 and the current rules on the Constitutional Court’s deliberation thresholds (Chapter 8).
• X-6: Whether, and to what extent, the amending power is subject to substantive limits derived from the “liberal democratic constitutional order” (J.Y. Interpretations No. 499 and No. 721; Chapter 10).

4. The Constitutional Framework: Central Institutions, the Electorate, Territory and Amendment

Legal sources for this chapter: Notes [1], [10], [11], [14], [15], [17], [21].

(1) Text and Versions

The current Additional Articles were most recently amended by a ratification vote of the National Assembly on June 7, 2005, and promulgated by the President on June 10, 2005; that amendment revised Articles 1, 2, 4, 5 and 8 and added Article 12 [A]. The current wording of Articles 9 and 11 derives from the full text as amended and promulgated on April 25, 2000 [A]. There has been no further amendment since 2005.

(2) The Presidential Electorate (Article 2(1))

Article 2(1) provides that the President and Vice President shall be directly elected by “the entire people of the free area of the Republic of China”, beginning with the election of the ninth-term President in 1996; the return of people of the free area residing abroad to exercise their right to vote shall be regulated by law [A]. The Constitution does not define the “free area”, but its scope is given concrete form through the household registration and residence rules in statute (Chapter 6). It follows that changes in the Mainland’s population, status or household registration do not of themselves alter the presidential electorate; to change the scope of the electorate, the constitutional authorization must first be identified and the election laws then amended [B].

(3) The 113-Seat Structure of the Legislative Yuan (Article 4(1) and (2))

Article 4 provides that, from the seventh term onward, the Legislative Yuan shall have 113 seats: 73 from the special municipalities, counties and cities of the free area (at least one for each county or city); three each for lowland and highland Indigenous peoples of the free area; and 34 for the nationwide constituency and nationals residing abroad. District seats are apportioned by population, with constituencies drawn equal in number to the seats to be filled; nationwide seats are elected by party-list vote and allocated proportionally among parties obtaining at least 5 percent of the vote, and women may not make up less than one half of each party’s list of elected candidates [A]. J.Y. Interpretation No. 721 (June 6, 2014) held that the single-member-district, two-ballot parallel system, the proportional party seats and the 5 percent threshold “do not violate the liberal democratic constitutional order on which the current Constitution rests” [A].

It follows that neither ordinary statute, nor administrative redistricting, nor a districting order can change the total of 113 seats or its categorical structure; enlarging central representation requires constitutional amendment [B].

(4) Territorial Change (Article 4(5) and Article 1)

Territorial change is not governed by Article 2 but by Article 4(5): the territory of the Republic of China, defined by its existing national boundaries, shall not be altered unless a territorial-change proposal is initiated by one-quarter of all legislators and passed by three-quarters of the members present at a meeting attended by at least three-quarters of the legislators, and, after a public announcement period of six months, approved in a referendum of the electors in the free area with valid votes in favour exceeding one half of the total number of electors [A]. Article 1(1) further provides that constitutional amendment proposals and territorial-change proposals initiated by the Legislative Yuan shall be put to a referendum within three months after the expiry of the six-month announcement period [A].

J.Y. Interpretation No. 328 (November 26, 1993) held that defining the scope of the “existing national boundaries” in Article 4 of the Constitution is a major political question that should not be interpreted by the constitutional interpretation body [A]. That interpretation declined only to define the territorial scope; it does not mean that any authority may alter the territory without following the Article 4(5) procedure [B]. In accordance with the division of labour in Section 5 of ROC-CONST-01 v1.2, this article does not discuss the substantive scope of the “existing national boundaries” further.

Issue X-1: those voting on a territorial-change proposal are “electors in the free area”. If some area were in future brought de facto under the jurisdiction of the Republic of China (Taiwan), whether its residents could vote in a territorial-change or constitutional-amendment referendum depends on whether the “free area” can be redrawn by statute or whether the Constitution must first be amended. This article takes the view that, so long as the constitutional text remains unchanged, enlarging the constitutional circle of referendum voters by statute raises doubts of unconstitutionality [C].

(5) The Amendment Procedure (Article 12)

Article 12 provides that a constitutional amendment proposal shall be initiated by one-quarter of the legislators and passed by three-quarters of the members present at a meeting attended by at least three-quarters of the legislators, and, after a public announcement period of six months, submitted to a referendum of the electors in the free area; it is adopted when valid votes in favour exceed one half of the total number of electors [A]. The time limit of “a referendum within three months after the six-month announcement period” derives from Article 1(1); Article 12 itself sets no time limit for the referendum [A].

J.Y. Interpretation No. 499 (March 24, 2000) declared the 1999 Additional Articles void because the amendment procedure suffered from “a manifest and grave defect”, and stated that the principles of the democratic republic, popular sovereignty, the protection of the people’s rights, and the separation of powers with checks and balances “are of essential importance” and constitute the “liberal democratic constitutional order” [A]. J.Y. Interpretation No. 721 reaffirmed this standard of review: constitutional amendments are to be respected unless the procedure suffers from a manifest and grave defect or the content violates the liberal democratic constitutional order [A]. When both interpretations were rendered, the amending body was the National Assembly; since 2005, amendments have been proposed by the Legislative Yuan and ratified by the people in a referendum, and the intensity with which this standard applies to the new procedure has not yet been tested by the Constitutional Court [C].

(6) The Special Legislative Authorization for Cross-Strait Relations (Article 11)

Article 11 provides that the rights and obligations between the people of the free area and those of the Mainland Area, and the handling of other related affairs, may be specially regulated by law [A]. J.Y. Interpretation No. 618 confirmed that the Cross-Strait Act is special legislation enacted under this authorization, and on that basis reviewed its differential treatment of people of the Mainland Area [A]. Article 11 authorizes the legislature to make special provisions, but it does not authorize any authority to rewrite Articles 2, 4 or 12 [B].

(7) Emergency Decrees (Article 2(3) and Article 4(6))

The power most likely to be invoked in the early stage of a transition is the power to issue emergency decrees. Article 2(3) provides that, to avert imminent danger to the state or the people or to respond to a major change in the financial or economic situation, the President may, by resolution of the Executive Yuan Council, issue emergency decrees without being subject to the restrictions of Article 43 of the Constitution; such decrees must, however, be submitted to the Legislative Yuan for ratification within ten days of issuance, and if the Legislative Yuan withholds ratification, the decree immediately ceases to be valid [A].

Separate provision is made for the case in which the Legislative Yuan has been dissolved (Article 4(6)): where the President issues an emergency decree after the dissolution of the Legislative Yuan, the Legislative Yuan shall convene of its own accord within three days and ratify the decree within seven days of convening; if the decree is issued after the election day for the new legislators, it is ratified by the new legislators after they take office; if ratification is withheld, the decree immediately ceases to be valid [A]. Article 2(5) further provides that the President may not dissolve the Legislative Yuan while martial law or an emergency decree is in effect [A].

The implication of this set of provisions is that emergency decrees can deal temporarily with public-safety and public-service problems in the early stage of a transition, but they cannot alter the electorate or the structure of representation, and they must be submitted to the Legislative Yuan for ratification within very short time limits [B].

(8) The Historical Significance and Limits of J.Y. Interpretation No. 261

J.Y. Interpretation No. 261 (June 21, 1990) required the first-term central representatives who had not stood for periodic re-election to cease exercising their powers by December 31, 1991, and required the central government to “hold, in a timely manner, nationwide elections of the next-term central representatives” [A]. Following the outline in Section 5 of ROC-CONST-01 v1.2, this article takes only its procedural meaning: it is a precedent for judicially driven democratic renewal of the central representative bodies, but the elections it referred to were in fact held in the free area, and it cannot be inferred from it that democratization of the Mainland would automatically reconstitute the current central institutions [B].

5. The Cross-Strait Special Act and the Procedural Boundaries of Political Agreements

Legal sources for this chapter: Notes [1], [2], [9], [12], [16].

(1) Definitions and Basis of Application (Articles 1 and 2)

Article 1 of the Cross-Strait Act states that its legislative purpose is, prior to national unification, to ensure the security of the Taiwan Area and the welfare of its people, to regulate interactions between the people of the two Areas, and to deal with the legal matters arising therefrom [A]. Article 2 defines the terms as follows: the Taiwan Area means Taiwan, Penghu, Kinmen, Matsu and any other area under the control of the government; the Mainland Area means the territory of the Republic of China outside the Taiwan Area; people of the Taiwan Area means people who have household registration in the Taiwan Area; people of the Mainland Area means people who have household registration in the Mainland Area [A].

Two points need to be made clear. First, the “Mainland Area” is a normative territorial definition; it does not mean that the institutions of the Republic of China (Taiwan) exercise effective administrative jurisdiction over that territory [B]. Second, the criterion dividing the two categories of people is household registration, not nationality or the fact of residence; this definition runs through the whole analysis of Chapter 6 [A].

Article-level versions: Articles 1 and 2 both carry the wording of the full-text amendment promulgated on October 29, 2003; Article 1 entered into force on December 31, 2003 by Executive Yuan order, and Article 2 on March 1, 2004 [A]. The most recent amendment of the Act as a whole was made on June 8, 2022 (amending Articles 9, 40-1, 91, 93-1 and 93-2, which entered into force on November 18, 2022 and April 28, 2023 respectively), and did not touch Articles 1, 2, 5, 5-3, 9-1 or 21 [A]. Proposals made in 2025 and 2026 concerning the title of the Act or the deletion of the words “prior to national unification” have not completed the legislative process; the official amendment-history page likewise records no corresponding amendment, and such proposals must not be treated as current law [A: no record on the amendment-history page; the content of the proposals was not independently verified for this draft].

(2) The General Agreement Procedure (Article 5)

Article 5 provides that an institution, private organization or other public-interest juristic person entrusted to sign an agreement shall submit the draft agreement through the entrusting authority to the Executive Yuan for consent before signing (Paragraph 1). Where the content of an agreement involves the amendment of a law or matters that must be prescribed by law, the authority handling the agreement shall, within thirty days after signing, submit it to the Executive Yuan for referral to the Legislative Yuan for review; where the content does not involve the amendment of a law and need not otherwise be prescribed by law, the authority shall, within thirty days after signing, submit it to the Executive Yuan for approval and send it to the Legislative Yuan for the record, with confidential handling where necessary (Paragraph 2) [A].

There is a fork here between “review” and “record”: whether the content of the agreement falls within the reservation of law determines whether the Legislative Yuan conducts a substantive review or merely receives the agreement for the record [A]. Article 5 carries the wording of the full-text amendment of October 29, 2003, in force from March 1, 2004 [A].

(3) The Ten-Part Procedure for Political-Issue Agreements (Article 5-3)

Article 5-3 was added and promulgated by presidential order on June 21, 2019 (Presidential Office Gazette No. 7432); on the same day the Executive Yuan issued Order Yuan-Tai-Fa-Zi No. 1080180281, setting its entry into force on June 23, 2019 [A]. It has not been amended since; the draft-amendment comparison materials posted on the competent authority’s website in 2026 are proposal documents and must not be confused with the current provision [A]. Its ten parts are as follows (paraphrase, not verbatim quotation):

• For an agreement involving political issues, the Executive Yuan shall, ninety days before negotiations begin, submit to the Legislative Yuan a plan for concluding the agreement together with a report assessing its constitutional or major political impact; negotiations may begin only after the plan has been approved by three-quarters of the members present at a meeting attended by three-quarters of all legislators [A].
• An agreement involving political issues means an agreement with constitutional or major political impact [A].
• The authority responsible for the agreement shall negotiate in accordance with the plan and report to the Legislative Yuan in a timely manner; the Legislative Yuan or the relevant committees may also invite it to report [A].
• If, on the basis of the reports, the Legislative Yuan judges that the negotiations can no longer proceed in accordance with the plan, it may, by resolution of one half or more of all legislators, demand that the negotiations be terminated; if the Executive Yuan reaches the same judgment, it shall terminate the negotiations and report to the Legislative Yuan [A].
• Within fifteen days after negotiation of the draft agreement is completed, the draft shall, by resolution of the Executive Yuan Council, be submitted to the President for approval; within fifteen days after the President’s approval, the Executive Yuan shall on its own initiative make public the full content of the draft agreement, send it to the Legislative Yuan for review, and report on the negotiation process and the impact assessment [A].
• Before review at a plenary sitting, the Committee of the Whole of the Legislative Yuan shall hold hearings on the draft agreement and the impact assessment [A].
• Review of the draft agreement at a plenary sitting of the Legislative Yuan requires the approval of three-quarters of the members present at a meeting attended by three-quarters of all legislators; the Executive Yuan then transmits the draft agreement, together with the main text of the referendum question and the statement of reasons, to the Central Election Commission, which holds a nationwide referendum; if the valid votes in favour exceed one half of the total number of eligible voters, the draft agreement is adopted and, after signature and exchange of notes by the responsible authority, is submitted to the President for promulgation and enters into force [A].
• Referendums on political-issue agreements are not subject to Articles 9 to 16 of the Referendum Act, the time periods in Article 17(1) and Subparagraph 3 of that paragraph, Article 19, Article 23, or Articles 26 to 29; other matters not provided for in this Act are governed by the Referendum Act [A].
• The abandonment or alteration of sovereign statehood and of the liberal democratic constitutional order shall not be made subjects of political-issue negotiations or agreements [A].
• Political-issue negotiations conducted or agreements made in violation of this Article are void [A].

The legislative reasons (explanatory notes to the version passed on third reading by the Legislative Yuan, May 31, 2019) contain three points directly relevant to this article [A, per the original text of the legislative reasons]. First, Reason 5 states expressly that the negotiation and signature of political-issue agreements are to be carried out directly by the government authority responsible for the agreement and that Article 5 (signature by an entrusted institution) does not apply; Articles 5 and 5-3 are therefore not lighter and heavier tiers of a single procedure but two mutually exclusive paths. Second, Reason 8 explains that the three-quarters threshold and the referendum in Paragraph 7 were adopted “with reference to the spirit of the provision on territorial-change proposals in Article 4, Paragraph 5 of the Additional Articles of the Constitution”; the legislature intended the democratic threshold for political agreements to match that for territorial change. Third, Reason 10 invokes J.Y. Interpretation No. 499 to explain that “even constitutional amendment has its limits”, and on that basis excludes sovereign statehood and the liberal democratic constitutional order from the subjects of negotiation. Reason 4 further notes that differences over the definition of “political issues” may be overseen by the Legislative Yuan through constitutional mechanisms under Article 3 of the Additional Articles and the Law Governing the Legislative Yuan’s Power.

These ten parts form a procedural chain in which no link may be omitted: two Legislative Yuan three-quarters thresholds (before negotiations begin and after review), one nationwide referendum (with more than one half of the total number of eligible voters as the passing threshold), two “fifteen-day” time limits, one substantive prohibition (Paragraph 9) and one nullity clause (Paragraph 10).

Paragraph 9 deserves particular attention. The term “liberal democratic constitutional order” that it uses is identical to the wording of J.Y. Interpretations No. 499 and No. 721, and the legislative reasons state expressly that it is based on J.Y. Interpretation No. 499. This means that any proposal that touches the constitutional core by way of a political agreement is excluded from the negotiating agenda at the statutory level, without the need to await constitutional review [B].

(4) J.Y. Interpretation No. 329: An Authority by Negative Implication Only

J.Y. Interpretation No. 329 (December 24, 1993) defined the scope of “treaty” under the Constitution and stated expressly in the final paragraph of its reasoning: “Agreements concluded between the Taiwan Area and the Mainland Area are not international written agreements within the meaning of this interpretation; whether they should be submitted to the Legislative Yuan for review is outside the scope of this interpretation” [A]. Interpretation No. 329 can therefore serve only as an authority by negative implication: it supports neither the view that “cross-strait agreements should be reviewed in the same way as treaties” nor the view that “cross-strait agreements need not be reviewed by the Legislative Yuan” [B]. The Legislative Yuan’s current participation in cross-strait agreements rests on the statutory provisions of Articles 5 and 5-3 of the Cross-Strait Act, not on constitutional interpretation [B].

(5) Comparison of the Three Voting Procedures

Under current law there are three voting procedures relevant to this article: the ordinary nationwide referendum (Referendum Act), the referendum on a political-issue agreement (Cross-Strait Act, Article 5-3), and the ratification referendum on constitutional amendment or territorial change (Additional Articles, Articles 1, 4(5) and 12). They are compared in the table below [A, unless otherwise indicated].

Item of comparison	Ordinary nationwide referendum	Referendum on a political-issue agreement	Referendum on constitutional amendment / territorial change
Legal basis	Referendum Act	Cross-Strait Act, Article 5-3(7) and (8)	Additional Articles, Articles 1, 4(5) and 12
Legal rank	Statute	Statute (special act)	Constitution
Voter eligibility	Nationals of the Republic of China aged eighteen or over who are not under a guardianship declaration (Article 7) and have resided continuously in the Republic of China for six months or more (Article 8(1))	The Referendum Act applies to the extent not excluded by Paragraph 8	“Electors in the free area of the Republic of China” (constitutional term; specific eligibility set by statute)
Prior threshold in the Legislative Yuan	Depends on the origin of the proposal	Before negotiations begin and after review: three-quarters attendance and approval by three-quarters of those present, each time	Initiation by one-quarter; three-quarters attendance; resolution by three-quarters of those present
Passing threshold	As provided in the Referendum Act	Valid votes in favour exceeding one half of the total number of eligible voters	Valid votes in favour exceeding one half of the total number of electors
Timing of the vote	Within three to six months after the proposal is announced as established; held on the same day as any nationwide election falling within that period (Article 23, amended December 3, 2025)	Article 23 inapplicable under Paragraph 8	Within three months after the six-month announcement period (Article 1)
Can it substitute for another procedure?	No	No: if the content of the agreement requires constitutional amendment, the constitutional procedure must still be followed separately [B]	No: constitutional amendment cannot dispense with the statutory procedure for agreements [B]

Two supplementary points. First, Article 23 of the Referendum Act as amended on December 3, 2025 (referendums held on the same day as nationwide elections) does not apply to referendums on political-issue agreements, because Article 5-3(8) expressly excludes Article 23 [A]. Second, J.Y. Interpretation No. 645 (July 11, 2008) held constitutional the provision under which the Legislative Yuan refers matters to a referendum under the Referendum Act, but held that the provision under which members of the Referendum Review Committee are recommended by political parties in proportion to their seats in the Legislative Yuan deprived the Executive Yuan of its constitutional power to decide on personnel appointments, in violation of the separation of powers [A]. That interpretation is a reminder that institutional design within referendum procedures is likewise bound by the separation of powers, and that no design for a “special referendum commission” in a transitional period may ignore this [B].

Issue X-2: if one and the same arrangement is both a political-issue agreement and one that requires amendment of the Constitution, this article takes the view that both procedures must be fulfilled, and that the circle of voters in a constitutional-amendment referendum cannot be enlarged by way of an agreement referendum [B]. The legislative reasons pegged the agreement threshold to territorial change rather than to constitutional amendment, which shows that the legislature did not design the agreement referendum as a substitute for amendment and supports the “separate fulfilment” reading [B]. The order of the two procedures (amendment first, agreement first, or both together) is not expressly provided for in law, and there is no judicial precedent [C].

6. Status, Household Registration and Electoral Eligibility

Legal sources for this chapter: Notes [2] to [6], [15], [20].

(1) Nationality, Household Registration and Area Status Are Distinct Legal Facts

Article 2 of the Nationality Act sets out the bases on which nationality is acquired (article level: amended and promulgated January 27, 2021, in force January 1, 2023) [A]. Articles 1 to 5 of the Household Registration Act set out the scope of household registration, the competent authorities (the Ministry of the Interior at the central level; the governments of the special municipalities and of the counties and cities at the local level), registration by household and the rule that no person may hold two household registrations at the same time, the categories of registration, and the handling of registration by household registration offices (article level: Articles 1 to 3 and 5 carry the wording of the full-text amendment of May 28, 2008; Article 4 was most recently amended on January 21, 2015) [A]. These provisions do not in themselves confer any right to vote; they are the “machinery” on which the various election laws rely by referring to household registration data [B].

Article 2 of the Cross-Strait Act distinguishes “people of the Taiwan Area” from “people of the Mainland Area” by household registration [A]. The same national of the Republic of China may therefore fall into a different legal status depending on where his or her household registration is located. Nationality, area status, household registration, length of residence and the right to vote belong to different levels, and none of them can directly take the place of the other conditions [B]. As an incidental note: Articles 4, 6 and 7 of the Civil Servants Election and Recall Act are not analysed separately (the age and residence calculation rules of Article 4 are structurally identical to those of the Presidential and Vice Presidential Election and Recall Act, and Articles 6 and 7 are organizational provisions on the election authorities, unrelated to questions of status and eligibility); Article 1 of the Nationality Act is a provision on scope of application with no independent substantive proposition, so the main text relies on Article 2.

(2) Presidential Elections: Constituency, Right to Vote, Electors and the Electoral Roll

The Presidential and Vice Presidential Election and Recall Act (hereinafter the “Presidential Election Act”) was most recently amended as a whole on August 19, 2026, when only Article 26 was amended [A]. It had previously undergone a major amendment on June 9, 2023 [A]. The provisions relevant to this article are as follows:

• Article 3: the presidential and vice-presidential election takes the free area of the Republic of China as its constituency (article level: full-text amendment of October 29, 2003) [A].
• Article 4: the ages and periods of residence of electors and candidates are calculated up to the day before election day, on the basis of household registration data; periods of residence are counted from the date on which the household registration move-in was registered (article level: as above) [A].
• Article 11: people of the free area of the Republic of China who have reached the age of twenty have the right to vote (article level: amended June 9, 2023; that amendment deleted the exclusion of persons under a guardianship declaration, and the current provision no longer contains that restriction) [A].
• Article 12: persons with the right to vote must currently have resided continuously in the free area for six months or more; or have previously resided continuously in the free area for six months or more, currently be abroad, hold a valid passport of the Republic of China, and register as electors with the household registration authority of their original place of registration within the prescribed period (article level: full-text amendment of October 29, 2003) [A].
• Article 16: the electoral roll is compiled by the township (town, city, district) household registration authorities on the basis of household registration data; all persons who are recorded in the household registration data twenty days before election day and are qualified as electors are included (article level: amended June 9, 2023) [A].

This set of provisions gives concrete form to the “free area” as an electorate based on household registration and residence. The legal sequence for changing it is: first determine whether the electorate under Article 2 of the Constitution permits enlargement; if constitutional amendment is required, complete it under Article 12; only then amend Articles 3, 11, 12 and 16; and finally have the household registration and election authorities implement the new law [B]. The Central Election Commission cannot enlarge the constituency by administrative order [B].

(3) Presidential Candidacy: Articles 20 and 26

Article 20(1) provides that an elector who has resided continuously in the free area of the Republic of China for six months or more, has previously held household registration there for fifteen years or more, and has reached the age of forty may apply to register as a candidate for President or Vice President. Article 20(2) provides that persons who have restored their ROC nationality, persons who have acquired ROC nationality through naturalization, and people of the Mainland Area or residents of Hong Kong or Macao who have been permitted to enter the Taiwan Area may not register as candidates for President or Vice President (article level: full-text amendment of October 29, 2003) [A].

Paragraph 2 is a “categorical” restriction. Unlike Article 10 of the Nationality Act (the restriction on naturalized persons holding public office lapses after ten years, unless otherwise provided by other laws), Article 21 of the Cross-Strait Act (registration as a candidate for public office is possible after ten years of household registration) or Article 24(7) of the Civil Servants Election and Recall Act (registration only after three years since the restoration of nationality or ten years since naturalization), it sets no condition under which it lapses with time; it does not lapse with time [A]. Therefore, even if a person of the Mainland Area lawfully acquires household registration in the Taiwan Area and meets the fifteen-year registration requirement, he or she still cannot register as a candidate for President or Vice President [B]. Any reform that would allow persons of Mainland origin to run for President must amend Article 20(2); whether that paragraph is consistent with the constitutional principle of equality is itself unresolved Issue X-3 [C].

Article 26 lists the negative qualifications that bar registration as a candidate. The amendment of August 19, 2026 added persons finally convicted of offences under the Fraud Crime Hazard Prevention Act (Subparagraph 6); Subparagraph 16, “under a declaration of guardianship or assistance that has not been revoked”, remains a negative qualification [A]. This amendment has no direct bearing on the status questions of this article and is recorded only for completeness of the version record.

(4) Legislative and Local Public-Office Elections

The Civil Servants Election and Recall Act (hereinafter the “Civil Servants Election Act”) was most recently amended as a whole on July 1, 2026, when only Article 26 was amended [A]. Before that, Articles 57, 70, 71 and 73 were amended on January 21, 2026, and on February 18, 2025 Articles 76, 79, 80 and 83 were amended and Article 98-2 was added [A]. Any citation that describes the February 2025 or January 2026 version as the “current version” is out of date.

• Article 2 defines the public offices to which the Act applies; the current wording expressly lists Indigenous district council representatives and Indigenous district chiefs (article level: amended May 28, 2014) [A].
• Article 3(2): legislators for the nationwide constituency and for nationals residing abroad are elected by party-list vote (article level: full-text amendment of November 7, 2007) [A].
• Article 24(1): electors who have reached the age of twenty-three may register as candidates for public office, while candidates for mayor of a special municipality or county (city) magistrate must have reached the age of thirty; Paragraph 7: persons who restored ROC nationality at least three years earlier, or acquired nationality through naturalization at least ten years earlier, may register (article level: amended May 28, 2014) [A].

The seats and categories of legislative elections are directly bound by Article 4 of the Additional Articles. Enlarging representation requires first resolving the constitutional questions of seats and constituencies, and only then designing ordinary statutes and election-administration rules; the right to vote in central elections and the right to vote in local elections cannot be inferred from each other [B].

(5) Articles 9-1 and 21 of the Cross-Strait Act

Article 9-1(1) provides that people of the Taiwan Area may not hold household registration in the Mainland Area or hold passports issued by the Mainland Area. Paragraph 2 provides that a person who violates this provision shall, unless the relevant authorities find that special considerations make it necessary to decide otherwise, lose the status of a person of the Taiwan Area and the rights of election, recall, initiative and referendum, of military service and public office, and other related rights deriving from household registration in the Taiwan Area, and the household registration authorities shall cancel his or her household registration in the Taiwan Area (article level: full-text amendment of October 29, 2003, in force March 1, 2004) [A].

Article 21(1) provides that people of the Mainland Area who have been permitted to enter the Taiwan Area may not, unless otherwise provided by law, register as candidates for public office, serve as personnel of public schools, government agencies (institutions) or state-owned enterprises, or form political parties until they have held household registration in the Taiwan Area for ten years; and may not serve as personnel of intelligence agencies (institutions) or of specified national-defence agencies until they have held household registration for twenty years (article level: full-text amendment of October 29, 2003, in force December 31, 2003) [A].

J.Y. Interpretation No. 618 (November 3, 2006) reviewed the “serving as public functionaries” part of the first clause of Article 21(1), as amended and promulgated on December 20, 2000, and found that differential treatment conditioned on ten years of household registration had a reasonable basis and did not violate the constitutional principles of equality and proportionality [A]. The interpretation did not directly review the part concerning “registering as a candidate for public office”; extending the conclusion of No. 618 directly to candidacy is a grade-B inference, not a grade-A fact [B].

The bearing of these two articles on the question of this article is very direct. Article 9-1 means that, under current law, Mainland household registration and the status of a person of the Taiwan Area are mutually exclusive; Article 21 means that even if a person of the Mainland Area acquires household registration in Taiwan, eligibility to stand for public office still requires ten years; and Article 20(2) of the Presidential Election Act means that presidential candidacy is permanently closed to such persons. Together the three form a gradient of increasingly strict restrictions [B].

(6) Implementation Requirements

Any future population registration or voter registration must address, at the same time, the verifiability of identity data, anti-discrimination standards, personal data protection, complaints and judicial redress, and the effective date of registration. A population census or constituency scheme that has not obtained statutory authorization can serve only as research preparation and must not claim to constitute a statutory electoral roll [B/D].

7. Legal Limits on Local Self-Government and the Provincial System

Legal sources for this chapter: Notes [1], [7], [13], [22].

(1) The Specific Arrangements of Article 9 of the Additional Articles

Article 9(1) provides that the systems of provinces and counties shall be prescribed by law, and enumerates the following: a province shall have a provincial government of nine members, one of whom shall be the chairperson, all to be appointed by the President upon nomination by the Premier of the Executive Yuan; a province shall have a provincial consultative council, whose members shall be appointed by the President upon nomination by the Premier; a county shall have a county council, whose members shall be elected by the people of the county; the legislative power of a county shall be exercised by the county council; a county shall have a county government, headed by a county magistrate elected by the people of the county; the relationship between the central government and the provinces and counties; and the province shall, at the direction of the Executive Yuan, supervise matters of county self-government. Article 9(2) provides that modifications of the functions, operations and organization of the Taiwan Provincial Government may be specially regulated by law [A].

The object that Paragraph 2 authorizes to be adjusted is the “Taiwan Provincial Government”; it is not a general clause abolishing the provincial system [B]. Members of the provincial consultative council are appointed, unlike the elected provincial assemblies of the past; there is no elected provincial legislative body under current law [A].

(2) Article 2 of the Local Government Act and J.Y. Interpretation No. 467

Article 2, Subparagraph 1 of the Local Government Act provides that a local self-government body means a body that implements local self-government under this Act and has the status of a juristic person under public law; the provincial government is an agency dispatched by the Executive Yuan, and the province is not a local self-government body (article level: the wording as enacted and promulgated on January 25, 1999; none of the subsequent amendments has touched this article) [A]. The most recent amendment of the Act as a whole was made on December 3, 2025, amending Articles 33, 55 to 57, 61 and 83-7, of which Article 55(1) and (2) and Article 56(1) and (2) entered into force on January 1, 2026; it has no bearing on the status of the province [A]. Article 14, which lists the local self-government bodies (special municipalities, counties and cities, townships, towns and county-administered cities) without including the province, may serve as corroboration; Articles 15 and 16 govern the status and rights of residents and have no direct bearing on the status of the province. The direct basis for the status of the province is Article 2, Subparagraph 1.

J.Y. Interpretation No. 467 (October 22, 1998) held that, after Article 9 of the 1997 Additional Articles took effect, the province had not lost its status as a tier of the local government system, but it no longer had matters of self-government prescribed by the Constitution and lacked autonomous organizational power, and was therefore not a juristic person under public law in the nature of a local self-government body; to the extent that the law confers powers on the province and it may be a subject of rights and obligations, the province may have the status of a juristic person under public law [A].

(3) Implications for the Reform Path

Future design of the local government system must distinguish at least four things: the historical experience of provincial assemblies (citing Chapter 8 of C-T04-P02), the consultative body under current law, lawfully authorized local self-government bodies, and transitional representative bodies that remain policy concepts. The last category cannot acquire powers of taxation, legislation, enforcement or adjudication by virtue of its name [B].

If the direction of reform is to restore elected self-governing bodies at the provincial level, it must confront the express “appointment” provisions of Article 9(1), Subparagraphs 1 and 2, and the interpretation in J.Y. Interpretation No. 467; so long as the constitutional text remains unchanged, establishing an elected provincial assembly by ordinary statute raises doubts of unconstitutionality (Issue X-4) [C]. The sequential conditions for local organizational reform are: confirming the effective jurisdiction and the competent authority; identifying constitutional constraints; enacting or amending organic laws; establishing supervision and fiscal accountability; holding local elections in accordance with law; and establishing judicial redress. Reform of the central representative structure must in addition comply with Articles 4 and 12, and cannot be accomplished by the Local Government Act alone [B].

8. Constitutional Adjudication and Disputes over Competence

Legal sources for this chapter: Notes [1], [8], [18], [19].

(1) The Current Framework of the Constitutional Court Procedure Act

The Constitutional Court Procedure Act was amended and promulgated on January 4, 2019, with a new title and a full text of 95 articles, entering into force three years after promulgation (January 4, 2022) [A]. The provisions relevant to this article are:

• Article 1: lists the types of cases heard by the Constitutional Court, including constitutional review of statutes and regulations and of court judgments, disputes between state organs, impeachment of the President and Vice President, the dissolution of unconstitutional political parties, the protection of local self-government, and the unified interpretation of statutes and regulations (article level: amended and promulgated June 21, 2023, in force July 7, 2023) [A].
• Article 47: where the highest organs of the state, in exercising their powers, consider that a statute or regulation they apply contravenes the Constitution, they may petition the Constitutional Court for a judgment of unconstitutionality; lower organs may ask their superior organs to petition (article level: full-text amendment of January 4, 2019) [A].
• Article 49: one-quarter or more of the current total number of legislators may, in the exercise of their powers, petition the Constitutional Court for a judgment of unconstitutionality where they consider that a norm of statutory rank contravenes the Constitution (article level: as above) [A].
• Article 59: where people’s constitutionally guaranteed rights have been unlawfully infringed and they have exhausted all levels of appeal in accordance with statutory procedure, they may petition for a judgment of unconstitutionality against the final judgment or the statute or regulation applied in it, within a peremptory period of six months from the day following service of the final judgment (article level: amended June 21, 2023, in force July 7, 2023) [A].

Note that the provisions amended and promulgated on January 23, 2025 were Articles 4, 30 and 95; Article 1 was most recently amended in 2023 and has nothing to do with the 2025 amendment [A].

(2) The 2025 Amendment and Judgment 114-Hsien-Pan-1

The provisions amended and promulgated on January 23, 2025 required the following: where the number of Justices falls below that prescribed in Article 5(1) of the Additional Articles, the President shall make nominations to fill the vacancies within two months (Article 4(3)); no fewer than ten Justices must take part in deliberations on a judgment, and a declaration of unconstitutionality requires the concurrence of at least nine (Article 30(2)); where the required number of participants is not reached, a ruling of dismissal may be made with the concurrence of more than one half of the current total number of Justices (Paragraph 3); the above thresholds apply to provisional injunctions, impeachment and the dissolution of political parties (Paragraph 4); where more than seven Justices are recused, all non-recused Justices must take part and three-quarters must concur (Paragraph 5), and where fewer than seven Justices are not recused, the case may not be heard (Paragraph 6); the amended provisions enter into force on the date of promulgation (Article 95) [A].

On December 19, 2025, the Constitutional Court rendered Judgment 114-Hsien-Pan-1 (originally docketed as Case 114-Hsien-Li-1; the petitioners, Legislator Ker Chien-ming (柯建銘) and others, 51 legislators in all, petitioned under Article 49). The operative part of the judgment reads:

• The above Article 4(3), Article 30(2) to (6) and Article 95 suffer from manifest and grave defects in the legislative process, contravene constitutional due process of legislation and violate the constitutional principle of separation of powers; all contravene the Constitution and shall cease to be effective from the date on which the judgment is announced [A];
• Article 95 as it stood before the amendment promulgated on January 23, 2025 continues to apply after the promulgation of the present amendment of that provision [A];
• The petition for a provisional injunction is dismissed [A].

The judgment was signed by five Justices, namely Presiding Justice Shieh Ming-yan (謝銘洋) and Justices Lu Tai-lang (呂太郎), Tsai Tsai-chen (蔡彩貞), Chen Chung-wu (陳忠五) and Yu Po-hsiang (尤伯祥), and was authored by Justice Lu Tai-lang [A].

(3) Separate Opinions and Public Dissent: Recorded Separately

Only two official opinions are attached to the judgment: a concurring opinion by Justice Yu Po-hsiang (joined by Justices Shieh Ming-yan and Chen Chung-wu), and an opinion concurring in part and dissenting in part by Justice Tsai Tsai-chen [A]. According to the official “table of positions on the operative part”, all five signing Justices concurred in all three holdings; with respect to the first holding, Justice Tsai Tsai-chen took a different position on the part of the reasoning finding that “Article 30(5) and (6) violate the principle of separation of powers” [A, per the table of positions; the text of the table was obtained through character recognition of a scan, and the original governs as to wording].

Separately, Justices Tsai Tzung-jen (蔡宗珍), Yang Hui-chin (楊惠欽) and Chu Fu-mei (朱富美), who did not take part in the deliberations in the case, jointly issued a public legal opinion on the day the judgment was announced, maintaining that, under the Constitutional Court Procedure Act then in force, the eight sitting Justices could not lawfully constitute the Constitutional Court, and that the judgment signed by five Justices was “without jurisdiction from the outset” and therefore void [per the Central News Agency report of December 19, 2025; the document is not among the opinions attached to the judgment]. The Constitutional Court responded the same day that the judgment is legitimate under the Constitution [ibid.].

Accordingly, the statement that “three Justices jointly filed a dissenting opinion” is inaccurate: the three Justices did not file a dissenting opinion attached to the judgment; what they issued was a public legal opinion outside the framework of the judgment.

(4) Current Status of Validity

Under the operative part of the judgment, Article 4(3), Article 30(2) to (6) and the 2025 version of Article 95 ceased to be effective as of December 19, 2025, and Article 95 as it stood before the amendment continues to apply [A]. Article 30(1) (a judgment requires the participation in deliberations of two-thirds or more of the current total number of Justices and the concurrence of more than one half of the current total) was not declared unconstitutional and remains the current rule for deliberations [A]. The consolidated version of the Laws & Regulations Database as of October 8, 2026 still displays the text of Article 30(2) to (6); readers should not conclude from this that those provisions are still in force [A].

On the other hand, the public legal opinion of the three Justices has made the validity of the judgment itself a point of contention (Issue X-5). This article records the dispute without taking a position; it notes only that, in law, the declarations of invalidity in the operative part of the judgment constitute the current state of the law, and the public dissent has not overturned the judgment [B]; politically, the binding force of the judgment has been questioned by some members of a constitutional organ [C].

(5) Implications for the Roadmap of This Article

The Constitutional Court is the dispute-review body referred to in item M6 of the matrix in Chapter 9. Three points follow. First, whether future Mainland authorities or organizations have standing to petition must be determined case by case according to the type of case (petitions by organs under Article 47, by legislators under Article 49, by individuals under Article 59), the standing of the parties and their institutional status; admissibility cannot be presumed [B]. Second, the deliberation thresholds themselves have been the object of conflict between the legislature and the judiciary, so any reform step that relies on confirmation by the Constitutional Court must allow for the risk of a “dispute over the composition of the Court” [B]. Third, filling vacancies among the Justices is a constitutional procedure of presidential nomination and Legislative Yuan consent (Article 5 of the Additional Articles), not a matter that the reform roadmap of this article can address [B].

9. Matrix of Legal Obstacles, Competent Authorities and Reform Paths

Legal sources for this chapter: Notes [1] to [18].

The table below is arranged in the format “current provisions / obstacle / competent authorities / reform path / scenario / preconditions / evidence grade”, with seven items in total.

No.	Current provisions	Obstacle	Competent authorities	Reform path	Triggering scenarios	Preconditions	Grade
M1 Legislative Yuan seats	Additional Articles, Article 4(1) and (2); J.Y. Interpretation No. 721	The 113 seats and their categories are prescribed by the Constitution and cannot be changed by ordinary statute	Legislative Yuan (initiation, resolution); electors in the free area (referendum); Central Election Commission (implementation in accordance with law)	Amend the Constitution under Article 12, then amend the Civil Servants Election Act and the constituencies	S-1, S-2	Lawful determination of the amendment procedure and of the circle of referendum voters	A (obstacle); D (path)
M2 Presidential election	Additional Articles, Article 2(1); Presidential Election Act, Articles 3, 4, 11, 12, 16 and 20	The electorate is based on the free area and household registration; categorical restriction in Article 20(2)	Legislative Yuan; electors in the free area; household registration authorities; Central Election Commission	First resolve the constitutional authorization, then amend the election law and the rules on electoral rolls	S-1, S-2	Authorization at the constitutional level; legal framework for household registration and electoral rolls	A (obstacle); D (path)
M3 Political agreements	Cross-Strait Act, Articles 5 and 5-3; J.Y. Interpretation No. 329	A political agreement cannot replace constitutional amendment or bypass the two three-quarters thresholds and the referendum; substantive prohibition in Paragraph 9	Executive Yuan; Legislative Yuan; President; Central Election Commission; all eligible voters nationwide	Follow the ten-part procedure of Article 5-3; if constitutional amendment is involved, also follow Article 12	S-1	Approval of the plan for concluding the agreement; impact assessment; hearings	A
M4 Local and provincial system	Additional Articles, Article 9; Local Government Act, Article 2; J.Y. Interpretation No. 467	The province is not a self-government body; the provincial consultative council is appointed	Legislative Yuan; Executive Yuan; local self-government bodies	First confirm the jurisdiction and authorization, then amend the Local Government Act and the election laws; establishing an elected provincial assembly may require constitutional amendment	S-1, S-3	Effective jurisdiction; competent authority; fiscal accountability	A (obstacle); C (necessity of amendment)
M5 Status and household registration	Nationality Act, Articles 2 and 10; Household Registration Act, Articles 1 to 5; Cross-Strait Act, Articles 2, 9-1 and 21; J.Y. Interpretation No. 618	Nationality, area status, household registration, residence and eligibility for political participation each have independent conditions	Ministry of the Interior and household registration authorities; Legislative Yuan	Amend each law separately; registration cannot take the place of constitutional amendment or amendment of the election laws	S-1, S-2, S-4	Statutory competent authority; verification of data; redress	A (obstacle); B (sequence)
M6 Dispute review	Constitutional Court Procedure Act, Articles 1, 47, 49 and 59; Judgment 114-Hsien-Pan-1	Standing to petition must be argued case by case; the composition of the Court and its deliberation thresholds are contested	Constitutional Court; petitioners	Petition according to the type of case; admissibility not presumed	S-2, S-3	Standing of the parties; lawful composition of the Court	A (provisions); C (composition dispute)
M7 Emergency powers	Additional Articles, Article 2(3) and Article 4(6)	Emergency decrees must be ratified within ten days (or, in the case of dissolution, the legislature convenes within three days and ratifies within seven days) and cannot alter the constitutional structure	President; Executive Yuan Council; Legislative Yuan	Use only for security and public services in the early stage of the transition, with sunset clauses	S-1 to S-4	Facts of imminent danger or of a major financial or economic change	A

Scenario codes: S-1 negotiated integration; S-2 unilateral declaration; S-3 competing governments; S-4 long-term coexistence (Chapter 12).

10. Normative Conflicts and the Sequencing of Implementation

Legal sources for this chapter: Notes [1], [2], [5], [7], [14], [17].

Conflict	Conflicting norms	Priority rule	Sequence	Grade
K-1 Seats	Central representative seats fixed by Article 4 of the Additional Articles vs. constituency arrangements in the ordinary election laws	The Constitution prevails	Complete the change at the constitutional level first, then adjust ordinary statutes and constituencies	B
K-2 Electors	Electors in the free area as referred to in the Constitution vs. nationality and household registration	The Constitution prevails; registration is merely the data on which eligibility is determined in accordance with law	First review Articles 2 and 12 of the Additional Articles and the election laws, then amend the registration rules	B
K-3 Provincial mechanisms	Current local self-government system vs. provincial-level consultative or preparatory mechanisms	Article 9 and the Local Government Act prevail	A consultative body may not call itself a statutory provincial assembly; first ascertain the authorization, then design the formal organization, the selection of representatives and redress	B
K-4 Agreement and amendment	Review and referendum on political agreements under Article 5-3 vs. ratification referendum on constitutional amendment under Article 12	Each applies separately; neither can replace the other	Where both procedures apply, each must be satisfied separately; executive consent cannot replace a decision by the legislature or the electorate	B (sequence: C)
K-5 Core of amendment	Amending power vs. liberal democratic constitutional order	Standard of J.Y. Interpretations No. 499 and No. 721	Any amendment proposal must first be assessed as to whether it touches the democratic republic, popular sovereignty, the core of fundamental rights and the separation of powers	C (X-6)

Review threshold: every implementation proposal should specify its legal basis, the competent authority, the scope of authorization, the triggering conditions, the necessary legislative amendments, public deliberation, avenues of redress and independently verifiable evidence of entry into force. A proposal lacking any one of these is marked as a policy recommendation (grade D), not as a competence under current law.

11. A Phased, Conditional Roadmap

The five phases below are research hypotheses, not a fixed timetable. The start of each phase depends on the existence of lawful authorities, effective jurisdiction and the completion of statutory procedures, not on the calendar [D].

Phase 1: Before the Transition (T−)

• Compile inventories of laws and evidence, an inventory of competences and a risk register (matrix items M1 to M7).
• Draft model laws and comparative proposals, without claiming that they have been authorized.
• Organize research and consultation that does not exercise coercive public power; study the methodological questions of Mainland representation.
• State clearly in all preparatory documents that they do not constitute authorization by any current authority.

Phase 2: Early Transition (Day 0–90)

• Precondition: a lawful and effective competent authority exists.
• Give priority to protecting life and safety, personal liberty, judicial proceedings and the continuity of public services.
• Emergency decrees must be adopted by resolution of the Executive Yuan Council under Article 2(3) of the Additional Articles and submitted to the Legislative Yuan for ratification within ten days; while the Legislative Yuan is dissolved, Article 4(6) applies (matrix item M7).
• Emergency measures carry sunset clauses; the urgency of policy does not exempt them from statutory oversight.

Phase 3: Institutional Bridging (Months 3–18)

• On the basis of legal competences already established, deal with voter registration, freedom of political parties, an independent election body, local democratic mechanisms and cross-strait negotiation procedures.
• Where necessary, legislate or amend the Constitution first, and only then carry out work on constituencies and electoral rolls (matrix items M2 and M5).
• This phase does not presuppose that any area has been brought within the current electoral scope of the free area.

Phase 4: Democratic Mandate (Months 12–36)

• Any matter involving the central representative structure, constitutional amendment, territorial change or political-issue agreements must obtain authorization under Article 12 or Article 4(5) of the Additional Articles, or under Article 5-3 of the Cross-Strait Act, as the case may be (matrix items M1 and M3).
• The thresholds and voter circles of the three voting procedures must not be mixed (table in Chapter 5).

Phase 5: Long-Term Institutional Consolidation (Years 3–10)

• The functioning of judicial independence and constitutional review (matrix item M6), fiscal and local-government accountability, the nationalization of the armed forces, transitional justice and long-term constitutional coordination.
• The time windows are planning assumptions only; actual initiation depends on lawful authorities, effective jurisdiction, statutory procedures and verifiable evidence of implementation.

Sequence of implementation (across all phases): verification of legal sources and inventory of competences → drafting of constitutional amendments and legislative proposals → necessary decisions by lawful authorities → amendment of election and administrative regulations → preparation of population registration, delimitation of constituencies, election administration and redress → implementation in accordance with law and independent audit.

12. The Boundaries of Legal Application in Different Scenarios

Legal sources for this chapter: Notes [2], [8], [18], [21].

The scenarios below serve only to analyse the legal questions they trigger. The systematic argument on their democratic legitimacy, state continuity and the crisis of competing governments belongs to ROC-CONST-01.

• S-1 Negotiated integration: political consent by both sides cannot replace any statutory step. Triggers matrix items M3 (all ten parts of Article 5-3), M1 and M2 (constitutional amendment is required if the central representative structure is involved), M4 and M5.
• S-2 Unilateral declaration: a declaration by the Mainland side that it is restoring ROC constitutional government is a political claim; it does not amount to recognition by the current institutions, does not create actual jurisdiction, and does not change the circle of electors in the free area. Triggers matrix items M2 (the electorate does not change by virtue of a declaration) and M6 (whether the declaring side has standing to petition).
• S-3 Competing governments: until disputes over institutional status and jurisdiction are resolved, it should not be asserted that any institution holds legislative or judicial competence under current law. Triggers matrix items M6 (including the risk regarding the composition of the Court revealed by Judgment 114-Hsien-Pan-1) and M4.
• S-4 Long-term coexistence: the focus is on maintaining lawful rules for exchanges of persons, property, judicial assistance and the protection of rights. Triggers matrix item M5 (the application and possible amendment of Articles 9-1 and 21) and the general agreement procedure under Article 5 of the Cross-Strait Act.

13. Conclusion

The central conclusion of this article is that the political goals of a democratic transition cannot be automatically converted into institutional competences under the current legal order of the Republic of China. Administrative jurisdiction, the status of residents, political agreements, the composition of representative bodies and constitutional amendment are five distinct legal questions; treating them as one may create defects of authorization and would also make transitional arrangements difficult to subject to judicial review.

Specifically, the presidential electorate and the 113-seat structure of the Legislative Yuan are prescribed by the Constitution and can be changed only through amendment under Article 12; territorial change has its own procedure under Article 4(5); cross-strait political-issue agreements must follow the ten-part procedure of Article 5-3, and Paragraph 9 prohibits altering the liberal democratic constitutional order by agreement. At the level of status, current law distinguishes the people of the two Areas by household registration and, through Articles 9-1 and 21 and Article 20(2) of the Presidential Election Act, imposes increasingly strict restrictions on the political eligibility of people of the Mainland Area, of which the restriction on presidential candidacy does not lapse with time. At the level of adjudication, Judgment 114-Hsien-Pan-1 restored the operating rules of the Constitutional Court, but the public dissent of three Justices regarding its validity means that the step of judicial confirmation itself carries uncertainty.

The reform outcome of first priority is therefore not an early announcement that new institutions have been established, but the preparation of a legal conversion inventory that the legislature, the judiciary and the public can test. Each measure should specify its basis in current law, the competent authority, the triggering conditions, the necessary legislative amendments, the sequence of implementation, the channels of redress and verifiable evidence of entry into force. Any measure lacking one of these core conditions can only be marked as a policy recommendation and may not be presented as a legal arrangement already in force. This path neither assumes that the Mainland Area is already under the effective jurisdiction of the institutions of the Republic of China (Taiwan) nor presupposes an outcome of unification, federation or new constitution-making.

14. Limitations of the Study

• L-1 Legislative reasons: the legislative reasons for Article 5-3 of the Cross-Strait Act have been obtained (Note [2]) and used in Chapter 5; the legislative reasons for Article 12 of the Additional Articles (the 2005 amendment) and for Article 20(2) of the Presidential Election Act have not yet been obtained, and the related interpretations in Chapters 4 and 6 do not rely on legislative reasons.
• L-2 Scholarly literature: the bibliographic details of the 15 items in Part C of the References were checked item by item on October 17, 2026 against Crossref/DOI records, publisher pages or library catalogues; the main text cites only their overall arguments, without page-level citation. Chinese-language scholarship and textbooks were not included in the bibliography in this round (their editions and page numbers could not be verified) and are listed for later addition.
• L-3 Article-level amendment history: article-level amendment dates were derived by comparing the article numbers listed on the “amendment history” pages of the Laws & Regulations Database; the database’s per-article history pages could not be accessed in this round, so some older provisions (such as Articles 1 to 3 and 5 of the Household Registration Act) can be traced back only to the most recent full-text amendment.
• L-4 Table of positions: only character-recognition text of the “table of positions on the operative part” of Judgment 114-Hsien-Pan-1 was obtained; the exact scope of Justice Tsai Tsai-chen’s differing position is governed by the original.
• L-5 Public dissent: the content of the three Justices’ public legal opinion is recorded on the basis of the Central News Agency report; the original opinion was not obtained, and any legislative response after the announcement of the judgment has not been verified in this article.
• L-6 Amendments to Article 26: the full comparison tables for the 2026 amendment of the Presidential Election Act and the July 2026 amendment of the Civil Servants Election Act were not compared subparagraph by subparagraph; this article records only that they are unrelated to the status questions.
• L-7 Cross-project citation: the authoritative draft of ROC-TRANS-02 was not located in this round and is therefore treated only as a scope exclusion; citations of ROC-CONST-01 and C-T04 are limited to Section 5 of the v1.2 supplementary draft and Chapter 8 of C-T04-P02.
• L-8 Currency: all provisions are as stated in the consolidated version of laws and regulations of October 8, 2026; amendments promulgated thereafter fall outside the scope of this article.

Notes (Article-Level Citations)

[1] Additional Articles of the Constitution of the Republic of China. Articles 1, 2, 4 and 5: amended and promulgated June 10, 2005 (ratified by the National Assembly June 7, 2005); Article 12: added the same day; Articles 9 and 11: full text amended and promulgated April 25, 2000. Laws & Regulations Database: Additional Articles of the Constitution of the Republic of China

[2] Act Governing Relations between the People of the Taiwan Area and the Mainland Area. Articles 1, 2, 5, 9-1 and 21: full text amended and promulgated October 29, 2003 (Articles 1 and 21 in force from December 31, 2003; Articles 2, 5 and 9-1 in force from March 1, 2004). Article 5-3: added and promulgated June 21, 2019 (Presidential Office Gazette No. 7432), in force June 23, 2019 (Executive Yuan Order Yuan-Tai-Fa-Zi No. 1080180281). Most recent amendment of the Act as a whole: June 8, 2022. Laws & Regulations Database: Act Governing Relations between the People of the Taiwan Area and the Mainland Area; legislative reasons (articles and explanatory notes of the version passed on third reading by the Legislative Yuan on May 31, 2019, reproduced in the Taipei City laws and regulations database): legislative reasons, Taipei City laws and regulations database; Executive Yuan press release on the Council meeting of March 28, 2019: Executive Yuan press release, March 28, 2019; 2026 draft amendment (not current law): 2026 draft amendment (PDF)

[3] Nationality Act, Article 2: amended and promulgated January 27, 2021, in force January 1, 2023; Article 10: amended and promulgated December 15, 2021. Most recent amendment of the Act as a whole: May 24, 2024 (Articles 4 to 7, 9 and 20). Laws & Regulations Database: Nationality Act

[4] Household Registration Act, Articles 1 to 3 and 5: full text amended and promulgated May 28, 2008; Article 4: amended and promulgated January 21, 2015. Most recent amendment of the Act as a whole: January 21, 2015. Laws & Regulations Database: Household Registration Act

[5] Presidential and Vice Presidential Election and Recall Act, Articles 3, 4, 12 and 20: full text amended and promulgated October 29, 2003; Articles 11 and 16: amended and promulgated June 9, 2023; Article 26: amended and promulgated August 19, 2026. Most recent amendment of the Act as a whole: August 19, 2026 (Article 26 only). Laws & Regulations Database: Presidential and Vice Presidential Election and Recall Act

[6] Civil Servants Election and Recall Act, Articles 2 and 24: amended and promulgated May 28, 2014; Article 3: full text amended and promulgated November 7, 2007; Article 26: amended and promulgated July 1, 2026. Most recent amendment of the Act as a whole: July 1, 2026 (Article 26 only). Laws & Regulations Database: Civil Servants Election and Recall Act

[7] Local Government Act, Article 2: enacted and promulgated January 25, 1999. Most recent amendment of the Act as a whole: December 3, 2025 (Articles 33, 55 to 57, 61 and 83-7; Article 55(1) and (2) and Article 56(1) and (2) in force from January 1, 2026). Laws & Regulations Database: Local Government Act

[8] Constitutional Court Procedure Act, Articles 1 and 59: amended and promulgated June 21, 2023, in force July 7, 2023; Articles 47 and 49: full text amended and promulgated January 4, 2019, in force January 4, 2022; Article 4(3), Article 30(2) to (6) and Article 95: amended and promulgated January 23, 2025, invalidated by Judgment 114-Hsien-Pan-1 with effect from December 19, 2025 (Article 95 as it stood before the amendment continues to apply). Laws & Regulations Database: Constitutional Court Procedure Act

[9] Referendum Act, Articles 7 and 8: full text amended and promulgated January 3, 2018; Article 23: amended and promulgated December 3, 2025. Laws & Regulations Database: Referendum Act

[10] J.Y. Interpretation No. 261 (June 21, 1990). Constitutional Court: J.Y. Interpretation No. 261

[11] J.Y. Interpretation No. 328 (November 26, 1993). Constitutional Court: J.Y. Interpretation No. 328

[12] J.Y. Interpretation No. 329 (December 24, 1993), reasoning, paragraph 2. Constitutional Court: J.Y. Interpretation No. 329

[13] J.Y. Interpretation No. 467 (October 22, 1998). Constitutional Court: J.Y. Interpretation No. 467

[14] J.Y. Interpretation No. 499 (March 24, 2000). Constitutional Court: J.Y. Interpretation No. 499

[15] J.Y. Interpretation No. 618 (November 3, 2006). Constitutional Court: J.Y. Interpretation No. 618

[16] J.Y. Interpretation No. 645 (July 11, 2008). Constitutional Court: J.Y. Interpretation No. 645

[17] J.Y. Interpretation No. 721 (June 6, 2014). Constitutional Court: J.Y. Interpretation No. 721

[18] Constitutional Court Judgment 114-Hsien-Pan-1 (December 19, 2025), including the operative part, the signatures, the record of the authoring Justice, the table of positions on the operative part and the two attached opinions. Constitutional Court: Judgment 114-Hsien-Pan-1 (Chinese); English summary: Constitutional Court: English summary; Judicial Yuan press release: Judicial Yuan press release

[19] Central News Agency, “憲訴法違憲案 蔡宗珍等3大法官：5人憲判無效【意見書全文】” [Constitutional Court Procedure Act case: Tsai Tzung-jen and two other Justices say five-Justice judgment void (full text of opinion)], December 19, 2025. Central News Agency report, December 19, 2025

[20] Central News Agency, “立院三讀曾犯詐防條例有罪確定 不得參選總統副總統” [Legislative Yuan passes on third reading: persons finally convicted under the Fraud Crime Hazard Prevention Act barred from running for President or Vice President], August 4, 2026. Central News Agency report, August 4, 2026

[21] ROC-CONST-01 research sprint, v1.2 supplementary draft (2026-10-14), Section 5.

[22] C-T04-P02, From the Late-Qing Provincial Consultative Assemblies to the Provincial Assemblies of the Republic (《從清末諮議局到民國省議會》), v1.0, Chapter 8.

References

A. Laws (see Notes [1] to [9])

B. Judicial Interpretations and Judgments (see Notes [10] to [18])

C. Scholarly Literature (bibliographic details checked 2026-10-17)

• Albert, Richard. Constitutional Amendments: Making, Breaking, and Changing Constitutions. Oxford University Press, 2019.
• Arato, Andrew. Post Sovereign Constitution Making: Learning and Legitimacy. Oxford University Press, 2016.
• Bauböck, Rainer. “Expansive Citizenship: Voting beyond Territory and Membership.” PS: Political Science & Politics 38, no. 4 (2005). DOI 10.1017/S1049096505050341.
• Crawford, James. The Creation of States in International Law. 2nd ed. Oxford University Press, 2006.
• Elster, Jon. “Forces and Mechanisms in the Constitution-Making Process.” Duke Law Journal 45, no. 2 (1995). DOI 10.2307/1372906.
• Ginsburg, Tom. Judicial Review in New Democracies: Constitutional Courts in Asian Cases. Cambridge University Press, 2003.
• Ginsburg, Tom, Zachary Elkins, and James Melton. The Endurance of National Constitutions. Cambridge University Press, 2009.
• Lerner, Hanna. Making Constitutions in Deeply Divided Societies. Cambridge University Press, 2011.
• López-Guerra, Claudio. Democracy and Disenfranchisement: The Morality of Electoral Exclusions. Oxford University Press, 2014.
• Lutz, Donald S. “Toward a Theory of Constitutional Amendment.” American Political Science Review 88, no. 2 (1994). DOI 10.2307/2944709.
• Marek, Krystyna. Identity and Continuity of States in Public International Law. Geneva: Librairie E. Droz, 1954 (2nd ed. 1968).
• Roznai, Yaniv. Unconstitutional Constitutional Amendments: The Limits of Amendment Powers. Oxford University Press, 2017.
• Teitel, Ruti G. “Transitional Jurisprudence: The Role of Law in Political Transformation.” Yale Law Journal 106, no. 7 (1997). DOI 10.2307/797160.
• Teitel, Ruti G. Transitional Justice. Oxford University Press, 2000.
• Yeh, Jiunn-rong. The Constitution of Taiwan: A Contextual Analysis. Oxford: Hart Publishing, 2016. ISBN 9781849465120.

The specific editions and page numbers of Chinese-language constitutional law textbooks and monographs (such as the works of Wu Geng (吳庚) and Chen Chun-wen (陳淳文); Fa Jyh-pin (法治斌) and Dong Bau-cheng (董保城); and Hsu Tzong-li (許宗力)) have not yet been verified, so they are not included in the bibliography of this draft, to avoid citing unverified edition information.

This paper is also available in Simplified Chinese (original), Traditional Chinese, English, French, German and Spanish.

v1.0 ｜ 2026-10-22

Review record: Editorial independent review, 2026-10-21. Conclusion: PASS.