The Control Yuan has taken it upon itself to request a constitutional interpretation of the Act Governing the Handling of Ill-gotten Properties by Political Parties and Their Affiliate Organizations (政黨及其附隨組織不當取得財產處理條例), even though the Constitution has absolutely nothing to do with it.
The reasoning given was that the Executive Yuan failed to return the act to the legislature for reconsideration or request a constitutional interpretation.
Legislators have criticized the move, saying that the yuan is overstepping its powers and violating Article 5 of the Constitutional Interpretation Procedure Act (司法院大法官審理案件法).
In 1982, the Control Yuan used its power to request an interpretation on whether the Judicial Yuan has the right to propose laws, an issue to which the Constitution is relevant.
According to the application for that constitutional interpretation: “When it comes to the question of whether the Judicial Yuan has the right to propose laws, the Control Yuan is of the opinion that each of the five branches established under the Constitution is the highest authority in the nation within their specific area of responsibility, that they are all equal and that based on the spirit of checks and balances, the Judicial Yuan should have the same right as the other branches to propose laws. This is an issue that has caused a dispute over the application of the Constitution between the Control Yuan and the Judicial Yuan based on Article 1, Paragraph 1 of the [now defunct] Council of Grand Justices Act (司法院大法官會議法).”
Whether the Judicial Yuan should have the right to propose laws has nothing to do with the Control Yuan’s powers, as it also has the right to propose constitutional interpretations.
In response to the interpretation requested by the Control Yuan, the Judicial Yuan issued Constitutional Interpretation No. 175, which said the Judicial Yuan has the right to propose laws.
Since then, the Judicial Yuan has had the right to propose laws and it has been very conscientious about using this right, proposing laws dealing with every civil, criminal and administrative aspect of how courts try cases and even the Consumer Debt Clearance Act (消費者債務清理條例), which involves the rights and obligations of financial institutions and land registration issues.
This means that the Judicial Yuan is both player — as it can propose laws, and referee — as it can interpret whether those laws are constitutional.
It also has to dispatch a huge group of judges to the legislature where they spend all day bowing and curtsying, dropping all pretense of the yuan’s neutral and detached position.
With its request for an interpretation, the Control Yuan is overstepping its powers, causing disorder in the system and infringing on the Executive Yuan’s rights when it comes to issuing of corrections.
The Control Yuan still has the right of censure during impeachments, but since disciplinary sanction cases must first be submitted to the Control Yuan for impeachment, things are being slowed down, and some civil servants are even protected by the Control Yuan and can escape punishment.
For example, disciplinary cases against judges and prosecutors, after having been evaluated, must be submitted to the Control Yuan for impeachment. If the yuan does not impeach, the evaluation becomes meaningless.
Since even the latest crop of Control Yuan nominees have called for its abolishment, this is the time to take action.
Furthermore, to prevent the Judicial Yuan from being both player and referee, the institution should be stripped of its right to propose laws.
Li Chin-i is a head prosecutor at the Taichung branch of the Taiwan High Prosecutors’ Office.
Translated by Perry Svensson
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