By voting overwhelmingly for the Democratic Progressive Party (DPP) in Saturday’s presidential and legislative elections, Taiwanese handed the DPP a complete hold on power and accomplished the nation’s first simultaneous transfer of administrative and legislative powers.
Some commentators said that the DPP set a constitutional precedent by accepting President Ma Ying-jeou’s (馬英九) offer to form a Cabinet based on its legislative majority. There have been reports that Ma plans to invite president-elect Tsai Ing-wen (蔡英文) to the Presidential Office to discuss the issue.
Tsai is not only the president-elect, but also chairperson of the DPP, which holds a legislative majority, so she must speak and act with caution, as her responses to political issues are of significance and could set a constitutional precedent. As a power transfer takes place, Ma should consider his constitutional position and set a good example during the transition by implementing a seamless handover of power and national security affairs to maintain the operations of the constitutional system.
First, the Cabinet should be formed by the party that received a majority vote in the presidential election rather than in legislative elections. Taiwan’s constitutional system is close to a semi-presidential system, so the president should appoint a premier from the party that received the highest percentage of votes in the presidential election.
The president is entrusted by voters to appoint a premier to form a Cabinet, thus implementing the idea that sovereignty rests with the public by letting the public decide the direction of the government. The president can then indirectly run the government, the premier and the government members appointed by them, which is an important mechanism for implementing national policy based on the newly formed public opinion.
Second, the duty of a caretaker government is to handle government transition. When Tsai visits Ma to discuss the transition of power, she can make recommendations for the appointment of a new premier, but she should respect Ma’s authority to appoint the premier during the remainder of his presidency. It is not necessary for the president-elect to pick a premier for Ma, nor is it necessary for her to approve the appointment made by Ma based on the past majority.
Moreover, to build a lasting constitutional precedent, regardless of whether Ma accepts Tsai’s recommendation, the next Cabinet should fulfil its duty as a caretaker government and set a new precedent of democratic and constitutional government transition by handling the process properly. If Tsai intends to appoint the same person as premier after taking office, she still needs to reappoint that person to form a government after her inauguration on May 20.
The task for any government formed before that day is to ensure a smooth and complete takeover for the new administration and to avoid any interruption of constitutional operations.
Third, Ma is also to take on a caretaker role with respect to the powers that remain in his hands and national security issues should be seamlessly transferred to the next president. As a caretaker president who has been replaced by voters, Ma and the related government agencies should start the transition of authority over national defense and security, diplomacy and cross-strait relations, so the next president’s team can familiarize themselves with them as soon as possible and be prepared for developments in these domains after the takeover. A successful transfer of such affairs would shorten the transition period and minimize the risk of any harm to public interest.
Therefore, when Tsai discusses the formation of a caretaker government with Ma, she should request that Ma begin the transition of such domains, so she can take over presidential authority in these areas smoothly. To achieve such a goal, a “president-elect office” could be established to brief her on related national defense and diplomatic issues.
Finally, the government transition process should be enshrined in law. To ensure a flawless transition process through legislation, the incoming legislature should promptly write a bill after taking office on Feb. 1, such as a “government transition act” or “interim government act.” This would build a clear and feasible mechanism and lay a legal foundation for Taiwan’s constitutional democracy in future power transfers.
Hao Pei-chih is a professor at National Taipei University’s department of public administration and policy.
Translated by Eddy Chang
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