Tue, Aug 17, 2010 page8

• [ LETTER ]

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  Wu let the dogs out?

  Taiwan, like the US, is a thriving democracy. Neither nation will ever see a winner in the tug-of-war over the separation of powers between the executive and judicial branches of government. A recent case in Taiwan highlights the never-ending power struggle that takes place in a healthy democracy.

  Late last month, the Taipei High Administrative Court ordered the suspension of all expansion work at the Central Taiwan Science Park (CTSP), a cluster of high-tech manufacturing plants set amidst lush farmland.

  In response to the court injunction, Premier Wu Den-yih (吳敦義) offered the following: “It is necessary to respect the court’s judgment, but the most important issue is to keep government policies consistent and coherent and to avoid investors from losing out.”

  “The government will undoubtedly abide by the final decision if the outcome is firmly supported by the law,” he added.

  I may be a mere US law school student interning in Taiwan for the summer, but even I can tell there is something awry with Wu’s comment. Aren’t the courts supposed to decide if “the outcome is firmly supported by law?” And if it’s not the court’s job to interpret what the law means, then whose job is it?

  It seems to me that there is a bit of a power struggle between the courts and the Cabinet. On the one side, the courts want to defend individual rights against environmental pollution. On the other, Wu wants to promote prosperity through economic development.

  Both positions have a lot in their favor. The real question, however, is legal: Who is the final interpreter of the law? In light of this, we should ask: Is Wu right? If the courts want to stop a development and Wu wants it to continue, who ought to win?

  Here’s a brief recap of the situation. In 2006, the Environmental Protection Administration (EPA) gave the green light for the third-phase expansion of the science park. Local residents sued the EPA, arguing that the development would damage their farms. In 2008, the court agreed and told the EPA to reassess the environmental impact of the science park by conducting a second environmental impact assessment (EIA). The court ruled that the first EIA was flawed because it did not disclose enough information to properly assess the impact of the expansion on public health and the environment.

  The park administration boldly ignored the court decision and continued developing the site. Local residents again filed suit for an injunction and again won when the Taipei High Administrative Court ordered the science park to suspend all construction work until the EPA conducted and approved a second EIA.

  Enter Wu and his words about listening to the court if — and only if — the court offers a judgment he favors.

  The struggle between the judicial and executive branches is not a problem unique to Taiwan. In 2006, former US president George W. Bush’s administration and the courts went head-to-head over the issue of separation of powers. Following Sept. 11, Bush issued a military order unilaterally establishing military commissions to try Guantanamo detainees for war crimes. The US Supreme Court intervened, daring the president to challenge its authority. Unlike Wu, the president bowed to the power of the court.

  The decision in Hamdan v. Rumsfeld represents a clear check on executive power by the judicial branch. In a concurring opinion, Justice Anthony Kennedy wrote, “Trial by military commission raises separation-of-powers concerns of the highest order. Located within a single branch, these courts carry the risk that offenses will be defined, prosecuted and adjudicated by executive officials without independent review.”

  Although the US Supreme Court established more than 200 years ago in Marbury v. Madison that it is “emphatically the province and duty of the judicial department to say what the law is,” the battle between the judiciary and executive is far from over.

  In fact, to end this battle would in some sense mark the end of a democratic system.

  Nevertheless, the science park case needs resolution. Is the Judicial Yuan a truly independent branch of government, endowed with the right to be the final interpreter of the law?

  Or does Wu have the authority to ignore court rulings if he believes that they are not “supported by the law”? The answer to this question will have repercussions for years to come.

  JULIA TONG

  Taipei
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