In her address on Double Ten National Day, President Tsai Ing-wen (蔡英文) invited the leaders of major political parties to meet and exchange ideas on constitutional reform.
People First Party Chairman James Soong (宋楚瑜) expressed his willingness to participate and Chinese Nationalist Party (KMT) Chairman Wu Den-yih (吳敦義) said he would not reject Tsai’s invitation if everything is appropriate.
It is heartening to see that major political parties are willing to discuss constitutional reform and national affairs together.
However, if they merely limit constitutional reform to certain issues — such as lowering the voting age from 20 to 18, adding “human rights articles” to the Republic of China Constitution and the issue of “malapportionment,” or the imbalance between votes and seats in the legislature relative to the size of constituencies — they are unlikely to resolve problems such as a dearth of substantial rights or imbalances between presidential power and accountability.
Just like the fireworks display on Double Ten National Day, the meeting might be momentarily impressive, but ultimately unhelpful to the improvement of Taiwan’s constitutional politics.
The fundamental problem in constitutional politics was broached by French philosopher Jean-Jacques Rousseau more than 200 years ago, when he wrote that free participants in a democracy are bound by the majority decision after their vote has been cast.
The power is in the hands of the people, but individuals only wield this power on election day. For the subsequent 1,400 or more days after the election, the president is able to freely appoint or dismiss the premier, ministers, ambassadors and chairpersons of state-owned enterprises and foundations without the legislature’s review or the public’s approval.
Since Tsai enjoys even greater presidential power in this regard than US President Donald Trump, Taiwanese have only nominal rights and they are consigned to being taxpaying slaves for senior government officials.
According to the Additional Articles of the Constitution (憲法增修條文), recall of the president “shall be initiated upon the proposal of one-fourth of all members of the Legislative Yuan, and also passed by two-thirds of all the members.” Also, “the final recall must be passed by more than one-half of the valid ballots in a vote in which more than one-half of the electorate in the free area of the Republic of China takes part.” This is an absurdly high threshold.
Former president Chen Shui-bian (陳水扁) was subjected to a recall vote in the legislature in November 2006. He survived by only one vote, with 118 votes cast in favor of recall. This was more than half the number of legislative seats, but fell short of the required two-thirds threshold. This denied the electorate, enraged by the allegations of Chen’s corruption, the chance to take part in a recall vote.
The Constitution already allows eligible voters to nominate a presidential candidate through a petition and to give this person the chance to be elected president.
However, the electorate does not have the right to sign a petition demanding a recall motion.
This being the case, it is possible for the president to rely on a minority of legislators, and the electorate therefore has no real power to effect a recall. Any constitutional reform discussion needs to address this issue.
Another way the president can be relieved of their powers is through the impeachment system. Again, the Additional Articles regulates this and stipulates that an impeachment of the president — or vice president — “shall be initiated upon the proposal of more than one-half of the total members of the Legislative Yuan and passed by more than two-thirds of the total members of the Legislative Yuan, whereupon it shall be presented to the grand justices of the Judicial Yuan for adjudication.”
The person being impeached can only be removed from office after the Council of Grand Justices has ruled in favor of the impeachment.
Again, this system does not give the electorate any power to initiate impeachment proceedings.
The most ridiculous aspect of this is that, even after the threshold of two-thirds of the total members of the Legislative Yuan required to start an impeachment is met, the motion still needs to pass an adjudication by grand justices whom the president had nominated and summoned.
Will this flawed impeachment system, more complex even than the US system, be discussed in inter-party constitutional reform talks? Will it be changed?
Article 52 of the Constitution stipulates that “the president shall not, without having been recalled or having been relieved of [their] functions, be liable to criminal prosecution unless [they are] charged with having committed an act of rebellion or treason,” which is completely different from the US constitution, which states: “The president, vice president and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery or other high crimes and misdemeanors.”
The Constitution makes it difficult for Taiwanese to ensure that their president, vice president and government officials carry out their constitutional duties. This is something that needs to be broached in any inter-party constitutional reform talks.
Lin Terng-yaw is a lawyer.
Translated by Eddy Chang and Paul Cooper
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