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Clarifying the president’s powers
By Chen Yaw-shyang 陳耀祥
On Nov. 5, all of the accused in a case of alleged corruption related to the
second wave of financial reform that was carried out under the administration of
former president Chen Shui-bian (陳水扁) were found not guilty in the Taipei
District Court, including Chen himself.
This verdict has been greeted by a torrent of criticism. Behind this reaction
lies a mistaken notion and confusion, be it intentional or otherwise, between
the president’s legally defined powers and his political influence, and between
the associated concepts of legal responsibility and political responsibility.
Taiwan’s government is a dual-executive system, also called a semi-presidential
system. The main feature of this system is the division of executive power. The
president is head of state, and also holds some executive powers, which are
defined in the Constitution on an article-by--article and clause-by-clause
basis.
In the reasoning section of Constitutional Interpretation No. 627 concerning
presidential state secret privileges, the Council of Grand Justices lists the
presidential powers granted by the Constitution and by various constitutional
amendments.
These include powers related to national defense, foreign and cross-strait
relations, emergency state powers and so forth.
The president’s executive powers arise directly from the Constitution rather
than being bestowed upon him through laws passed by the legislature, so efforts
to determine whether a president has broken the law by exceeding his legally
defined powers must involve constitutional questions, rather than being limited
to questions of ordinary statutory law.
Executive powers that are beyond the legally defined powers of the president are
generally assigned by the Constitution to the Cabinet or the Executive Yuan.
Although there have been various constitutional amendments, the article stating
that “the Executive Yuan shall be the highest administrative organ of the state”
has never been altered.
The system of political accountability whereby the Cabinet informs the
legislature of its policy directions, makes policy reports to the legislature
and accepts lawmakers’ questions remains in place. An amendment was made to the
Constitution to the effect that the premier — the president of the Executive
Yuan — is appointed by the president, with no requirement that the appointment
be approved by the legislature.
In practice this gives the president an actual influence over many policy
decisions of the executive branch, but that influence arises from the political
system, and depends on the president’s personal charisma and prestige.
It has not systematically altered the distribution of powers between the
president and the executive branch.
For example, President Ma Ying-jeou (馬英九) made known his standpoint on the issue
of a High Administrative Court ruling halting construction of the third and
fourth stages of the Central Taiwan Science Park. He also expressed his views on
the Suhua Highway improvement project. These are cases of the head of state
expressing his position on major policy issues. They are political acts, but
these issues do not fall within the legally defined powers of the president.
The Constitution provides two different systems — recall and impeachment — for
monitoring the president and holding him to account. These control mechanisms
have been present in the Constitution ever since it was written and their
purpose is to subject the president to checks and balances.
In other words, those who drafted the Constitution and those who later amended
it have clearly distinguished between the president’s political and legal
responsibilities. Recall of a president is designed to hold the president to
account for his or her political responsibilities. It depends on the public’s
political approval or disapproval of the president.
It is not necessary for the president to have committed a crime — the public can
still make the president step down by voting in favor of a recall proposal in
accordance with the legally defined process.
The purpose of impeachment, on the other hand, is to hold a president to account
for his or her legal responsibilities, so if the legislature proposes a motion
of impeachment against a president it will be adjudicated by the Council of
Grand Justices.
When a court adjudicates on the question of whether a president has abused his
powers to obtain unlawful benefits for himself or for others in a particular
case, it must go back to examining the president’s legally defined powers.
Only by so doing does the court comply with the basic principle of a country
under the rule of law, namely that of trial according to the law. Otherwise we
would descend into mass trials like those that took place during China’s
Cultural Revolution and Taiwan would be mired in unending political struggle.
Chen Yaw-shyang is an assistant professor of public
administration and policy at National Taipei University.
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