On Oct. 13, President Ma Ying-jeou (馬英九) convened the National Security Council (NSC) to review food security issues. Officials at the meeting included Ma and the vice president; the premier, vice premier and secretary-general of the Executive Yuan; ministers of the interior, foreign affairs, finance, justice, economic affairs, health and welfare, mainland affairs, agriculture and environmental protection; plus top officials from national security agencies — including the NSC secretary-general, the director-general of the National Security Bureau and top officials from the Ministry of Justice Investigation Bureau and the National Police Agency.
After the meeting, the government announced the establishment of an Office of Food Safety. The meeting was unprecedented in its breadth, policy decisions and effect on governmental organization.
The legal basis for establishing the NSC and convening it is Article 2, Paragraph 4, of the Additional Articles of the Constitution of the Republic of China (中華民國憲法增修條文), which reads: “To determine major policies for national security, the president may establish a national security council and a subsidiary national security bureau. The organization of the said organs shall be stipulated by law.”
Article 2 of the National Security Council Organization Act (國家安全會議組織法) further stipulates that “national security” refers to matters concerning national defense, foreign relations, cross-strait relations and major unforeseen national events.
The question is how “major unforeseen national events” are to be understood and defined. Because the NSC exists to respond to worries about national security that arise from national defense and foreign affairs, “major unforeseen events” must threaten national security, and this definition must be strict.
Why must “major unforeseen events” be strictly defined as those that threaten national security? Because the overall meaning of the Constitution is to assign executive and policymaking powers to the Executive Yuan, not the president. Thus the Constitution does not give the president the power to convene or chair sittings of the Cabinet: Indeed, he is forbidden to attend them. The Constitution does not give the president the power to propose draft laws, veto bills or dissolve the legislature on his own.
Furthermore, the National Security Council Organization Act authorizes the president to convene a meeting of the NSC only in response to matters concerning national defense, foreign relations, cross-strait relations or major unforeseen national events. Even emergency orders must be approved by the Cabinet before being handed to the president for issuance and implementation. The Constitution clearly gives the powers of leading the government and making and implementing policies to the Executive Yuan. As Article 53 of the Constitution clearly stipulates: “The Executive Yuan shall be the highest administrative organ of the state.”
It is thus clear that the Constitution and other laws demand that “major unforeseen events” must be strictly defined to prevent the president from taking charge of policymaking under the guise of convening the NSC.
The cooking oil scandal’s impact does not involve national defense or foreign or cross-strait relations, nor does it fall within a strict definition of major unforeseen national events.
In view of all this, the president’s convening of the meeting and the number of heads of Cabinet-level agencies attending it merit suspicions that the president is exceeding his powers. This development should be treated with caution; otherwise it could have a considerable impact on the order of constitutional government.
Shen Yu-cheng is an associate professor of political science at Tunghai University.
Translated by Julian Clegg
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