Free Area of The Republic of China - Legal Use

Legal Use

The term "free area of the Republic of China" has persisted to the present day in the ROC legislation. The additional articles (amendments) of the Constitution of the Republic of China delegates numerous rights to exercise the sovereignty of the state, including that of electing the president and legislature, to citizens residing in the "free area of the Republic of China." This term was first used in the Constitution with the promulgation of the first set of amendments to the Constitution in 1991 and has been retained in the most recent revision passed in 2005.

The need to use the term "free area" in the Constitution arose out of the discrepancy between the notion that the Republic of China was the sole legitimate government of China and the pressures of the popular sovereignty movement. In the 1980s and 1990s, there were demands, particularly by the Tangwai movement and other groups opposed to one-party authoritarian KMT rule, to restructure the ROC government, long dominated by mainlanders, to be more representative of the Taiwanese people it governed. For example, until 1991, members of the National Assembly and Legislative Yuan elected in 1948 to serve mainland constituencies remained in their posts indefinitely and the President of the Republic of China was to be elected by this same "ten thousand year parliament" dominated by aging KMT members. However, more conservative politicians, while acquiescing to the need for increased democracy, feared that constitutional changes granting localized sovereignty would jeopardize the ROC government's claims as the legitimate Chinese government and thereby promote Taiwan independence.

According to the Constitution, promulgated in 1947 before the fall of mainland China to the Communists, the national borders of the Republic of China could only be changed through a vote by the National Assembly (amendments passed in 2005 transferred this power to the electorate through the method of referendum). In the absence of such constitutional changes, the Republic of China's official borders were to be regarded as all of mainland China and Outer Mongolia (including Tannu Uriankhai) in addition to the territories it controlled. (Until the mid-2000s, maps published in Taiwan depicted mainland provincial and national boundaries as they were in 1949, disregarding changes by the Communist administration post-1949.)

While the 1991 revisions of the Constitution granted the sovereignty rights to the Taiwanese people, it did not explicitly name Taiwan and instead used the term "free area" to maintain the notion that the Republic of China encompassed more than Taiwan. In ordinary legislation, the term "Taiwan Area" is usually used, especially in contexts of trade and exchange. In contrast to the "free area" is the "mainland area", which Act Governing the Relations Between Peoples of The Taiwan Area and The Mainland Area defines as "the territory of the Republic of China outside the Taiwan Area." However, on more practical grounds, the "mainland area" refers simply to mainland China.

In addition, there are two other Acts defining other "areas": the "Hong Kong Area" and the "Macau Area". The hand-over of these former European colonies to the People's Republic of China necessitated laws governing the relations of the Taiwan Area with them. The Acts make no direct claim of control over these areas but are worded in a manner that may or may not assume the right to make such claims.