Sat, Apr 05, 2014 - Page 8 News List

KMT a legislating sausage machine

By Chien Chien-jung 錢建榮

There is an interesting quote, commonly attributed to Otto von Bismarck, Germany’s “Iron Chancellor,” and variously translated into English as something like this: “Laws, like sausages, are best not seen being made.”

German sausages are known to be among the best in the world, but knowing what went into them during the production process, with the large amounts of offal, seasoning and “secret ingredients” that are added, the thought of eating them might be nauseating.

The implication of the quote is that people should perhaps avert their eyes when authorities are making laws, as laws are really tools to facilitate the desires of the powers-that-be. The dubious methods, measures and motives that underpin the whole process seem quite at odds with the beautifully presented finished product. As with laws, so with sausages.

In late 1993, hardly five years after the lifting of martial law, the Chinese Nationalist Party (KMT) passed three new pieces of legislation to consolidate the president’s power base.

These were the organic laws for the National Security Council, the National Security Bureau and the Bureau of Personnel Administration of the Executive Yuan. They were rushed through on the day before the sunset clauses within the Additional Articles of the Republic of China (ROC) Constitution came into effect, and forced through the legislature without being subjected to a clause-by-clause review.

No matter how much the opposition tried to boycott the passage of these laws, or how violent the physical confrontations between legislators became, then-deputy speaker of the legislature Wang Jin-pyng (王金平) was able to stand there, a smirk on his face, and announce that the three national security laws had been passed.

The public were up in arms, accusing the legislature of allowing itself to be operated as a mere legislative department working on behalf of the government.

For Interpretation 342, the Council of Grand Justices were asked the question: “Have the organic acts of the National Security Council, National Security Bureau and Bureau of Personnel Administration of the Executive Yuan been passed by the resolution of the legislature?”

Their rather verbose answer was as follows: “Where the procedures for enactment of the laws can be determined to be in contravention to the Constitution without investigation into the facts, ie where there are palpable material defects which are against the fundamental rules of enactment of laws, the authority responsible for constitutional interpretation may still declare it void. Where there is a dispute as to whether the defect is sufficient to affect the enactment of the laws to a grave extent and investigation is required, ie where it is not evident and, according to the current regime, the investigation of the facts thereof by the authority responsible for constitutional interpretation is subject to constraints, then the dispute shall be resolved in accordance with the autonomy rule of the Legislative Yuan... whether the protocols have been resolved is controversial and cannot be confirmed without investigation ... it shall be determined by the Legislative Yuan and shall be remedied within an appropriate period.”

In other words, even though the law in question could be declared null and void if thought to have been passed in blatant contravention of correct procedure, the legislature would still be expected to resolve the issue itself, and within a reasonable amount of time, should there be any doubt as to the way it was passed.

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