Fri, Nov 30, 2007 - Page 8 News List

The tortuous inaction of the CEC

By Chen Chao-chien 陳朝建

President Chen Shui-bian (陳水扁) and Taipei Mayor Hau Lung-bin (郝龍斌) are fighting over how referendum ballots are to be issued in the legislative elections. There is, however, no need to discuss whether a one-step procedure is better or worse than a two-step procedure; all this talk about guaranteeing voter privacy and beneficial electoral procedures is a pretext.

The Chinese Nationalist Party (KMT) does not oppose the one-step voting procedure as such, but the fact that voters would be voting in a referendum on its stolen assets.

The Democratic Progressive Party (DPP) is strongly in favor of the one-step voting procedure because it hopes the process will contribute to the KMT surrendering its stolen assets and some seats in the legislature.

When city and county electoral commissions organize elections or referendums for local governments, they function as independent government institutions. But when local election commissions organize national elections or referendums, they must follow the Central Election Commission's (CEC) instructions.

Local election commissions are executive institutions, but they do not have the personnel to organize national elections or referendums. Therefore, they must ask city and county governments to allot personnel to voting stations such as schools.

The division of responsibilities between the CEC, local election commissions and local governments is regulated by the Election and Recall Act (選罷法) and other laws. When local election commissions organize national elections or referendums, they must do so in accordance with directives from the CEC, which in effect delegates authority while retaining control.

Election officers must obey CEC guidelines, even if they think the guidelines are questionable or undesirable. If the CEC states that its directives are lawful and confirms this in writing, then all election officers must abide by the directives. The CEC is fully responsible for whether directives are in accordance with the law. This is stated in Article 17 in the Civil Service Protection Act (公務人員保障法).

But the CEC is doing something incorrectly. When the central government delegates authority to local governments to organize large projects like national elections or referendums, the legal basis for its actions are directives and practical instructions. There are still no standard rules for the execution of these activities in the Administrative Procedure Act (行政程序法).

There should, at the least, be agreement on administrative rules that directly or indirectly apply to institutions outside the central government.

That is, if the CEC sets administrative rules in accordance with the Administrative Procedure Act and issues legal orders on election work by civil servants and informs local governments of them, then local election commissions should organize elections in accordance with these standards.

The CEC has been saying that local election commissions must follow its decisions, but it has not taken either of two possible courses of action to enforce this.

If the CEC confirms its orders in writing and local election commissions do not comply, legal responsibility is transferred to the CEC.

Otherwise, if the CEC details the standard procedure for one-step voting in its administrative regulations, local election commissions and all electoral officers must abide by these rules as required by Article 161 of the Administrative Procedure Act.

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