In response to calls for combining the presidential and legislative elections, the authorities have said that the decision is in the hands of the Central Election Commission. They do not understand how such a change might run counter to the principles of democracy and political accountability.
For example, in 2009, the governing party in the German state of North Rhine-Westphalia proposed and voted through a legal amendment to combine the elections for local government with those for the European Parliament. The change would have meant a gap of 19 to 22 weeks between the polling day and the day state lawmakers took up their posts.
The opposition parties were not against combining the two elections, but they said that if the change were rushed through, it would result in an excessively long interval wherein there would be a lame-duck state government — which would be contrary to the principles of democracy. They therefore lodged a complaint with the Constitutional Court for the State of North Rhine-Westphalia, which ruled that combining the polls in 2009 was contrary to democratic principles and therefore null and void.
The ruling stated that based on Germany’s Basic Law and the constitutions of all its federal states, newly elected members of parliament must take their seats as soon as possible after being elected, because they are the voice of public opinion in a representative democracy. For this reason, the principles of democracy and accountability demand that the gap between elections and inauguration be no longer than three months.
German state and federal regulations limit the intervening period to three months or less. If the new regulations had been applied by combining the polls in 2009, it would have resulted in a gap between the election and inauguration of members of the state parliament of more than four months, or even five months.
The purpose of combining elections was in itself legitimate, but this purpose could be achieved by shortening the terms of the incoming members of the state parliament so that the two elections could be held on the same day in 2014. That being the case, the Constitutional Court found that there was no need to hastily enforce the amendment in 2009 and sacrifice democratic principles in the process.
As for Taiwan, Article 65 of the Republic of China Constitution states that elections for legislators must be completed within three months prior to the expiration of their term. Before direct presidential elections were instituted, the president was elected by the National Assembly.
According to Article 29 of the Constitution, “The National Assembly shall be convoked by the President to meet ninety days prior to the expiration of each presidential term,” and Article 2 of the Presidential and Vice President Election and Recall Act (總統副總統選舉罷免法), which was repealed in 1999, stipulated that the National Assembly, within its term of office, must hold an election for president and vice president 60 days before the terms of the sitting president and vice president expire.
In the course of democratization in Taiwan, some additional articles have been appended to the Constitution and among those, Article 4 stipulates, as does Article 65 of the main text, that legislative polls must be held within three months before the end of the term of the sitting legislators.
The president is now directly elected by popular vote. Although the length of time between the election and inauguration of a president and vice president is not specified, the Central Election Commission sets the date for elections at around 60 days before the incumbents’ terms expire, holding the poll on the nearest Saturday to that date. The old and existing rules and practices are all similar to the German practice of holding elections no more than three months before those elected are due to take office.
Taiwan’s central government system is not a parliamentary Cabinet system, so there are some differences between Taiwan’s situation and the German case. Nevertheless, democracy and accountability are what Interpretation No. 499 of the Council of Grand Justices calls “fundamental tenets of the Constitution as a whole.”
Even where the Constitution does not specify something precisely, that does not mean that the commission can act arbitrarily and contrary to precedent under a constitutional government. Among those nations that have a president who is elected by popular vote, the gap between election and inauguration in most cases is two months or less.
According to data published by the commission, Peru has the longest intervening period, but even that is just three months and 20 days. The practice of all these countries under constitutional law underlines the same principles of democracy and accountability that were stressed in the North Rhine-Westphalia court ruling.
If the commission is determined to go ahead and combine elections, it should pay serious attention to the principles of constitutionalism by formally proposing a constitutional amendment so that the matter can be settled once and for all by implementing the change in 2016. The only precondition for that is that the Cabinet is not brought down by the legislature before then.
Chen In-chin is a professor at National Central University’s Graduate Institute of Law and Government.
TRANSLATED BY JULIAN CLEGG
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