Law systems dominated by politics

By Huang Cheng-yi 黃丞儀  / 

Sat, Jan 12, 2013 - Page 8

If you ask people in Taiwan what their deepest impression of the current government is, “administration in accordance with the law” or “the rule of law” are likely to be among the top key phrases offered to describe it.

When houses are demolished to make way for urban renewal it is done according to the law. The environmental impact assessment for the Miramar Resort was done in accordance with the law. The Want Want China Times Group’s bid to acquire Next Media’s assets in Taiwan is being handled in accordance with the law.

Victorian British historian Thomas Carlyle used the term “the dismal science” to describe economics, as typified by Thomas Malthus and his “dismal theorem” of population.

In Taiwan today, the notion of “the rule of law” is coming to be seen in a similar light.

Many major social controversies over the last year have revolved around legal questions.

Under the administration of former president Chen Shui-bian (陳水扁), there was a growing tendency for political controversies to be handled in court and since Ma Ying-jeou (馬英九) became president, law courts have become an even more important forum for social movements.

For one thing, given that Ma’s Chinese Nationalist Party (KMT) now controls both the executive and legislative branches of the central government, when political departments stand firm and immovable, the judiciary becomes a social movements’ last line of defense.

For another, challenging defective administrative behavior through the judiciary can strengthen the basis for social mobilization.

The symbolic justice offered by court verdicts can satisfy the parties concerned in a moral sense. However, while we may hope that judges will play a positive role in relation to social issues, we should not forget that judicial verdicts may also result in setbacks.

Over-reliance on law courts may also cause the role of social movements in political and social spheres to whither away, which could cause them to lose their impetus.

More importantly, the experience of the last year or two suggests that even when administrative departments lose court cases, they often use technicalities combined with their administrative discretion to circumvent the results of court judgements. This tendency reveals the extent to which the system of government according to the law in this country has been stripped of its real substance.

If truth be told, it has never been possible to completely disallow discretion in the exercise of political power.

In post-war Germany, the whole ideology of government based on the Rechtsstaat doctrine was designed to prevent unlimited concentration of power and the unbridled autocratic decision making that results from it. So, the original intent of “administration in accordance with the law” is for a democratically legitimate parliament to establish norms by which legal regulations are used to build a framework for political power and reduce the potential for administrative arbitrariness.

However, there remains space for the exercise of political power beyond the constraints of legal regulations. For example, many constitutions provide for emergency decrees as a way of permitting the exercise of special executive powers.

The German-American political scientist Ernst Fraenkel described this coexistence of a “normative state” and a “prerogative state” as a “dual state.”

In reality, the “prerogative state” often penetrates into everyday politics through gaps in the constraints on administrative power.

Developments in Taiwan over the last few years have led people to recognize that politicians can use the rhetoric of “administration in accordance with the law” as a means of making measures of the “prerogative state” appear to comply with the law.

This legal subversion of language allows political departments to fudge their accountability, leaving social movements, whose strategy is centered on the law, at a loss for what to do.

When that happens, if party-based politics fails to play the role it should — that of providing checks and balances on power — it seems as though one can only rely on the constitutional court to perform the function of a legal and legitimate mediator that can keep the expansion of the “prerogative state” in check by means of its constitutional judicial reviews.

Unfortunately, the 15 members of the Council of Grand Justices have over the past year only made 12 constitutional interpretations. In contrast, the US Supreme Court, which only has nine members, made 78 constitutional interpretations in the 12 months between Oct. 1, 2011, and Sept. 30 last year.

Besides the low productivity of the grand justices, what is even harder to comprehend is that only four of the 12 interpretations they made in the space of one year were not related to tax law. All the others were cases related to income tax, commodity tax or business tax. Four new grand justices took up their posts on Oct. 1, 2011: Of the 17 interpretations that the Council of Grand Justices has made since that date, 11 are tax-law cases.

It is common for constitutional courts in the early transitional period of newly democratized countries to use tax law cases as a kind of test run, so as to avoid a backlash from political forces. Nevertheless, during the 10 years from the end of martial law in 1987 up to 1996, tax law cases have never accounted for more than 40 percent of the cases heard by the Council of Grand Justices: now that proportion is close to 70 percent.

It would seem that, other than questions such as whether the tax levied on color televisions and soft drinks contravenes the principle of statutory tax payment, the grand justices think all other basic rights of the people the nation are of no importance.

While the grand justices are adrift in a sea of tax-law cases, executive authorities in Taiwan, who have the legislature in their pockets, are getting away with rising above legal constraints, making the notion of “administration in accordance with the law” no more than a piece of illusory rhetoric.

If this kind of empty rhetoric keeps cropping up, the public’s political judgement will gradually be eroded, and the shadow of the “prerogative state” will be cast ever wider.

Taiwan’s society in the year 2012 has been overshadowed by the gilt-edged dark cloud of “administration in accordance with the law,” while repeatedly witnessing warning signs for the collapse of democracy.

Huang Cheng-yi is a doctor of juridical science and an assistant research professor in the Institutum Iurisprudentiae of Academia Sinica.

Translated by Julian Clegg