After reading the Council of Grand Justices' ruling on the halt to the construction of the Fourth Nuclear Power Plant
The language of the ruling was highly refined and well-rounded, accomplishing the impossible task of sketching a silhouette of the underlying opinion without uttering the magic words "unconstitutional" or "constitutional." The message from the justices is loud and clear -- "here are the rules of the game, you clean up your own mess ... we want hands off."
This is not the role expected of our judiciary. The judiciary is comparable to referee or umpire of a ball game. Would a Wimbledon umpire tell two arguing tennis players, "you decide whether the ball was out?" The US Supreme Court appears more willing to play the bad guy. Remember the battle between President Franklin D. Roosevelt and the Supreme Court in which the court repeatedly ruled emergency executive actions implementing the New Deal were "unconstitutional?" Remember how Roosevelt angrily called the justices "those nine old men" and then tried to add more justices to the court?
Certainly, Bao who had bravely slew members of the royal family with his "Shang-fang sword"
Taiwan has a history of executive domination, from the marital law era right through the days when the KMT controlled both the executive and the legislature. The change of ruling party has weakened the executive's power, as is evident by the battle over the nuclear power plant with the legislature, because the ruling party is the minority in the Legislative Yuan. However, the executive continues to wield leverage over the judiciary for many reasons. The fact that the justices are appointed by the president and do not enjoy life tenure is one reason.
The opposition has used its legislative majority to increase its power by attempting to expanding the prerogatives of the legislature, in a situation where these are far more unchecked than among most of its foreign counterparts. For example, members of the US House of Representatives enjoy immunity of speech only in their performance of legislative duties, while Taiwan's legislators enjoy immunity for all speech made in the legislature, even if it is unrelated to official activities. Therefore, many legislators in Taiwan use the legislature to make groundless personal attacks. Legislators in Taiwan also enjoy an absolute immunity from arrest and detention during legislative sessions, provided the legislature does not consent to their arrest or detention, something their US counterparts do not have. Members of the US Congress only have the power to make investigations related to legislative activities. In Taiwan, our legislators frequently meddle with criminal investigations unrelated to their legislative activities.
It is time for us to ask: Is this the government structure and power distribution we want? Unlike the US system, under which the three branches of government are linked by a system of checks and balances, our system overwhelmingly favors the legislative and executive powers. As a strong judicial power is essential for an effective checks and balances system, it is imperative for us to think about how to improve the power of the judiciary.
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