Mon, Jan 25, 2016 - Page 8 News List

How to avoid a constitutional crisis

By Chen Yaw-shyang 陳耀祥

The presidential and legislative elections, which went in favor of the Democratic Progressive Party (DPP) on Jan. 16 is the first total power transfer in Taiwan’s history. The question of how to smoothly pass through the transition period and avoid a constitutional crisis has become a focal point for discussion.

On Monday next week, legislators are to form the ninth legislature and take office, but the president-elect does not take office until May 20. This is situation is unusual worldwide. A caretaker period that extends for more than four months is a hindrance to government administration and, if faced with a crisis during this period, there might be questions about who shoulders responsibility. To resolve this, the Chinese Nationalist Party (KMT) suggested that the DPP form a new Cabinet as the legislative majority, but the DPP has been unwilling to accept the suggestion due to constitutional considerations, the main reason being that it would be unclear where political responsibility lies between the outgoing president and the new Cabinet.

Take cross-strait relations for example: if President Ma Ying-jeou (馬英九) insists on having a second meeting with Chinese President Xi Jinping (習近平), should the Cabinet cooperate? Should the Mainland Affairs Council listen to the president or the premier? Would there be more vicious political struggles if the Cabinet refused to cooperate?

Some have suggested that the constitutional deadlock be solved by establishing a system through a constitutional amendment, but that suggestion is not feasible. Due to the high threshold for passing an amendment and the suspicion between the parties, which all have their own agenda, the possibility that a constitutional amendment would be passed is low and the political cost would be high. There is only one way to resolve this constitutional crisis: Ma and Vice President Wu Den-yih (吳敦義) should resign.

As the Chinese saying goes, “the person creating the problem must be the one to resolve it.” Ma created the predicament when he sought re-election in 2012. He moved the presidential election forward to coincide with the legislative election to maximize votes from Taiwanese businesspeople returning from China, although he argued that it would save on election costs and that it be more convenient for voters to cast the ballots in both elections at the same time. At the time, most people felt that the transition period was too long and that it was a breach of the Constitution, but the Ma administration insisted on combining the elections.

Previously, the president and vice president were elected by the National Assembly. Article 29 of the Constitution states that: “The National Assembly shall be convoked by the president to meet 90 days prior to the date of expiration of each presidential term.” This article has now been invalidated by a constitutional amendment, but Article 2 of the Additional Articles of the Constitution regarding presidential elections fails to clearly specify that an election shall be held within three months of the expiration of each presidential term. It was this loophole allowed the Ma administration an election day of its choice.

In fact, the law does not say that the president and vice president-elect should be inaugurated on May 20. The constitutional precedent was set when the president and vice president were indirectly elected by the First National Assembly in Nanjing, China, on April 20, 1948, because they took office a month later on May 20. If Ma and Wu were to resign ahead of time, the president-elect and vice president-elect could take office and start their four-year terms at an earlier date.

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