With the Democratic Progressive Party in full control of both the executive and legislative branches of government, the legislature in July last year passed 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).
As soon as it was passed, Chinese Nationalist Party (KMT) legislators petitioned the Judicial Yuan to review its constitutionality. They calculated that since the serving grand justices were appointed by former president Ma Ying-jeou (馬英九), of the KMT, they might lend the KMT a helping hand.
However, because the KMT holds less than one third of the seats in the legislature, it could not achieve the required threshold for a constitutional interpretation.
However, the Control Yuan, with all members present and no dissenting votes, has approved an investigation into the matter by Control Yuan members Chang Kuei-mei (仉桂美) and Liu Te-hsun (劉德勳) and submitted its own petition for a constitutional interpretation by the Council of Grand Justices.
Taiwan has a five-branch Constitution, with control and examination branches in addition to the usual legislative, executive and judicial arms. The exercise of the Control Yuan’s power does not have to be based on legal evidence, as is required of a Judicial Yuan ruling; it is instead based on Control Yuan members’ subjective perceptions. Control Yuan members must then remain strictly impartial. However, they are playing the role of henchmen for a particular political party.
The role of the control branch is to oversee public servants on behalf of the public. Do Control Yuan members know that judicial bodies are subject to oversight by the control power, but legislative bodies are not and do they know why?
National legislators and local government councilors are all public servants in the broad sense, but they are not subject to oversight by control bodies. There is good reason for that, but unfortunately the Control Yuan members who hold control power have not made the effort to understand the purpose of this arrangement in the nation’s system of constitutional government.
Judicial officials hear cases and judge them according to the law, not by their subjective perceptions. If they did otherwise, they would be guilty of negligence, so they must be subject to oversight by control bodies.
However, elected representatives, including national legislators and local councilors, are entrusted by the masters of the nation — its citizens — to perform the task of legislation. It is a characteristic of the legislative power that elected representatives legislate according to their subjective perceptions. Consequently, they are not subject to oversight by other bodies. If they perform their duties in a way that runs contrary to the will of the public, they are relieved of their mandate.
For example, the question of abolishing the death penalty is not a matter of right or wrong — it is legislated according to subjective perceptions, but whether judicial officials sentence someone to death must be based on the laws enacted by legislative bodies, without the involvement of judges’ subjective perceptions.
While most democratic nations respect the principle that legislative bodies exercise their legislative power independently and subjectively, the Control Yuan is acting contrary to the system of constitutional government by interfering in the legislative power. No wonder some people think the Control Yuan is a sore appendix that needs to be removed.
Chen Mao-hsiung is a retired National Sun Yat-sen University professor and chairman of the Society for the Promotion of Taiwanese Security.
Translated by Julian Clegg
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