The government, the opposition and various social circles have been discussing the issue of constitutional amendments, while the Legislative Yuan has assembled a constitutional amendment committee to discuss an array of amendment proposals.
Among all sorts of proposals, the Chinese Nationalist Party’s (KMT) party line is based on the idea of reinforcing the Cabinet system, advocating the restoration of the legislature’s right to approve the premier to solve the dilemma of inconsistent rights and responsibilities within the Constitution.
However, even if the legislature was given the right to approve the premier, there is no reason to be overly optimistic that this would resolve the much-criticized imbalance between rights and responsibilities, and be a cure-all providing a smoothly functioning constitutional system.
A look at constitutional systems in other democracies shows that it is not only in parliamentary democracies that the right of approval of important government official appointments exists.
The German Bundestag has the right of approval of the premier. The same right also exists in some countries with presidential systems: The US Senate has the right of approval of presidential nominations of important government officials.
However, the right of approval highlights a different constitutional spirit in different constitutional systems. Under a Cabinet system, the parliamentary right of approval highlights the executive branch as answerable to the legislative branch, thus ensuring that the Cabinet is formed by the party holding the parliamentary majority.
Under a presidential system, on the other hand, the parliamentary right of approval is one of the checks and balances on the president’s powers, and it is intended to ensure that presidential appointees have the required abilities and qualifications to carry out their duties.
One noteworthy point is that the parliamentary right of approval under a presidential system does not give parliament the power to infringe on or replace the president’s right to make staff appointments. For example, in the US, if the president is a Democrat and the Republican Party holds a majority in the Senate, when the Senate exercises its right of approval, it would never request that the president appoint Republicans to the Cabinet.
South Korea, which uses a constitutional system that is quite similar to Taiwan’s, is an example worth referencing. Under the South Korean president, there is a prime minister who the president can appoint and dismiss. However, the president’s appointment must be approved by parliament.
Formally, South Korea’s system is characterized as a semi-presidential system, just like Taiwan’s. However, in reality, the constitutional operations follow the spirit of a presidential system. The parliamentary right of approval of the prime minister implies that parliament is performing checks and balances on the president, but in no way implies that the prime minister should come from the party that holds a parliamentary majority.
In the past, conflicts between South Korea’s president and the parliamentary majority were common, as were confrontations and deadlocks. However, it is unheard of for the South Korean legislature to use its right of approval of the prime minister as a weapon and demand that the president allow the majority party in parliament to form the Cabinet.
South Korean experience shows that even though the legislature at times refused to approve the president’s candidate for prime minister, the candidate could still serve as acting prime minister until the president appointed another candidate that the parliament approved. Given this situation, the opposition and conflict between the parliament and the president was usually quite serious.
In contrast to South Korea, the Republic of China Constitution was amended to give the Legislative Yuan the right of approval of appointed premiers. If the president and the legislative majority were to disagree, it is conceivable that the following turn of events could play out if the president were to adhere to the logic of a presidential system:
The president would insist on appointing a candidate that he or she prefers and refuse to hand over the right to form a Cabinet to the legislature, while the legislature would refuse to agree to the president’s choice, so that the nation would be left with an acting premier who was not approved by the legislature, just as in South Korea. The legislature would then put up strong resistance and block the acting premier’s policies, for example, by rejecting the acting premier’s request to deliver a policy address at the Legislative Yuan. This would result in a constitutional deadlock and conflict even worse than the current situation.
Therefore, improving the spirit of Taiwan’s constitutional and Cabinet system by amending the Constitution to solve the problem of imbalances between rights and obligations — even promoting a system under which the Cabinet is formed by the majority party in the legislature, only giving the legislature the right to approve the premier — might not be enough.
This is because even if the legislature has the right to approve the premier, the president might still, in accordance with the spirit of a presidential system, refuse to hand over the right to form the Cabinet to the legislature, despite its right to approve the premier. If this occurs, there will still be no way to avoid a constitutional deadlock of a divided government or the inability of a minority government to implement its policies.
The legislature’s right to approve the premier in itself is no magic pill to solve the current problem of imbalances between rights and obligations. If there is to be an amendment to the Constitution to move toward a Cabinet system, there clearly needs to be more complete complementary measures and plans.
Wang Yeh-lih is a professor of political science at National Taiwan University. Su Tzu-chiao is an assistant professor of political science at Tunghai University.
Translated by Zane Kheir
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