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Law change required
to control Ma
By Yen Chueh-an 顏厥安
The atmosphere of the Oct. 10 Double Ten National Day celebrations was marred
this year by protests, as the ongoing political storm stubbornly refuses to blow
over.
The public took to the streets to call on President Ma Ying-jeou (馬英九) and
Premier Jiang Yi-huah (江宜樺) to step down. Protesters wanted the Referendum Act
(公民投票法) amended, railed against the lack of transparency in the cross-strait
service trade agreement negotiations, demanded the immediate cessation of
construction of the Fourth Nuclear Power Plant and demanded the abolition of the
Special Investigation Division (SID) of the Supreme Prosecutors’ Office.
Neither Ma nor Jiang have any political legitimacy left, but their hold on power
is being protected by the way the political system is constructed. It would be
extremely difficult to impeach or recall the president, although the legislature
could have been dissolved had the no-confidence motion against the premier — for
which there is a more attainable threshold — succeeded.
The president’s perceived unconstitutional behavior brings up questions
regarding the limits of his powers. If the Constitution is unclear on these,
legislation needs to be created to establish the limits.
The Constitution contains legislation that governs the seven organs of
government. In addition to the Act Governing the Legislative Yuan’s Power
(立法院職權行使法), the legislature created rules for the now-defunct National Assembly.
The Control Act (監察法) and the Act Governing the Administration of Examination
(典試法) essentially limit the powers of the Control Yuan and the Examination Yuan
respectively. Judicial powers reside in each court and cannot be governed by
legislation.
The situation regarding the Executive Yuan is more complex. Article 53 of the
Constitution states: “The Executive Yuan shall be the highest administrative
organ of the State.”
However, after the Constitution was amended so the president was chosen in
direct elections and given the right to directly appoint the premier, Article 53
was effectively nullified.
The person invested with the powers of commander-in-chief of the armed forces,
director of national defense policy, nominator of the premier, issuer of
emergency directives, and employer of government ministers and senior military
officers must be the head of the “highest administrative organ of the State.”
Therefore, the national system of constitutional government is basically a
presidential system.
Under the US’ presidential system, the appointment of Cabinet members requires
congressional approval, but in Taiwan, the president can unilaterally form his
Cabinet. Had the no-confidence motion been passed, the legislature would have
been affected more than the president. Had it been dissolved, Ma would have
enjoyed more than two months of being able to govern without legislative
interference. The so-called “dual executive” semi-presidential system exists
only in theory, not in practice.
Recent events demonstrated that there is too much confusion regarding the exact
nature of presidential power. There are too few checks and balances to the post.
Ma is prepared to abuse the system and eavesdrop on the legislature, and has
abused his position as Chinese Nationalist Party (KMT) chairman to try and rid
himself of Legislative Speaker Wang Jin-pyng (王金平).
Lawmakers’ best weapon is their ability to legislate. Because constitutional
amendments are procedurally complex, they would best be achieved through new
legislation governing presidential powers. This would be an important way to
reflect public opinion and would be more democratic than leaving it to the
Council of Grand Justices to decide.
What would such legislation entail? Because the use of executive powers requires
legal authorization, such legislation should concentrate on the procedures,
methods and information regarding constitutional powers, as well as status and
finances. Since the president needs to bear in mind civil society and the
disadvantaged, it would not be excessive to require him to consult with the
legislature and non-governmental organizations prior to nominating grand
justices or Control Yuan members.
According to the Constitution, the legislature should decide issues of national
importance, which would of course include cross-strait affairs. The president
should discuss any major policies with it prior to implementing them, and even
seek its authorization. Otherwise, it would be very difficult to retract a
policy once it had been instigated.
Complete records should be kept of all data, telecommunications and recorded
material, which should eventually be declassified and released, or made
available to investigators.
Since the Constitution requires the armed forces to be given precedence over
party affiliation, it follows that the president should not concurrently hold
the position of party chairman.
History has shown that the president’s finances should not only be transparent,
they should also be placed in a compulsory trust.
The more laws there are, the more complicated situations become and the more
difficult it is to guard against abuses of power. Nevertheless, if shameless
politicians given to pathological lying find it difficult to achieve even
minimal standards of moral integrity, legislation must be created that can
provide the proper checks and balances.
This is a general direction in which to proceed, but, aside from drastic and
disruptive measures such as presidential impeachment or recall, how else can the
legislature penetrate the Cabinet’s armor and use the law to directly constrain
a president who has power without accountability?
Yen Chueh-an is a professor at National Taiwan University’s College of Law
and a supervisor of Taiwan Democracy Watch.
Translated by Paul Cooper
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