When Taipei Mayor Ko Wen-je (柯文哲) in September announced that he was going to reinstate former Taipei Municipal Zhongshan Junior High School music teacher Hsiao Hsiao-ling (蕭曉玲), he trumpeted the decision as a form of transitional justice, so it is ironic that he seems to be getting cold feet over the issue.
Hsiao’s case is probably the only one in the nation’s history that involves a conflict between the government’s executive, judicial and auditing branches. This deceptively insignificant-seeming and isolated case could provide the public with a valuable example of how the five branches of government are supposed to operate in the most testing of situations.
Hsiao, who in November 2007 filed a lawsuit against then-Taipei mayor Hau Lung-bin (郝龍斌), over Hau’s “one guideline, one curriculum” education policy, said that she was fired, with her right to work as a public-school teacher stripped, as a direct consequence of suing Hau. In 2011, she lost a lawsuit against the school when the Supreme Administrative Court upheld the school’s decision to fire her.
However, in 2013, the Control Yuan resolved to take corrective measures against the school and the Taipei Department of Education over Hsiao’s dismissal, citing a list of “major flaws” in decisionmaking, including a “biased” evaluation committee single-handedly put together by then-school principal Tseng Mei-hui (曾美蕙).
Using the corrective measures as a basis, Ko’s Taipei Clean Government Committee held a series of public hearings and recommended that Ko rescind Hsiao’s dismissal. Ko promised to rehire Hsiao at another school and compensate her for lost wages, which, unsurprisingly, drew heavy criticism from Chinese Nationalist Party (KMT) Taipei city councilors, who accused Ko of flouting a court ruling.
The Control Yuan in 2013 interfered, albeit indirectly, with the judiciary when it said that the decision to fire Hsiao was flawed; Ko then flirted with the idea of subjugating the judiciary when he announced that he would rehire Hsiao; and the Control Yuan this week chipped in by questioning the legal basis behind Ko’s decision — it is a huge mess.
With Hsiao’s supporters and her KMT detractors trading barbs for months over her fate, Ko is in a serious dilemma, as upsetting either side would surely bring grave consequences. Ko is clearly aware of this, as he has “shuttered” the case by putting Hsiao’s reinstatement on hold, saying that an evaluation panel would be established to reinvestigate her case.
This will probably buy Ko some time, but the case will come back to haunt him throughout the remainder of his term, and so will questions about the legitimacy of rehiring Hsiao.
What, then, should Ko do to get himself out of this sticky situation?
He has asked the Ministry of Education to assess the legitimacy of compensating Hsiao, but a more sensible option would be to request a constitutional interpretation.
When a local government, the Control Yuan and the judiciary do not agree with one another, a higher authority should be brought into play, and there seems to be no better choice than to resort to the Constitution, which defines the checks and balances between the five branches of government and is the fundamental document around which all laws are made.
With the Control Yuan having pointed out numerous problems with the school’s firing of Hsiao, the outcome of a constitutional interpretation would not necessarily hamper Ko’s efforts to uphold transitional justice. Rather, it would more likely empower him by providing him with the legal basis he needs to deal with the case.
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