On Sept. 13, the Taipei District Court granted Legislative Speaker Wang Jin-pyng (王金平) an injunction that allows him to keep his membership in the Chinese Nationalist Party (KMT) for the time being. However, the court’s ruling does nothing about the regulation laid out in the Civil Servants Election and Recall Act (公職人員選舉罷免法) stating that at-large legislators, meaning those who are drawn from a party list rather than representing a constituency, who lose their membership in the party that nominated them will consequently lose their legislative seat. This regulation puts the status and fate of at-large legislators completely in the hands of their political parties, and it also violates the democratic principles laid out in the Constitution.
At-large legislative seats are available to parties that get at least 5 percent of the total vote, and they are allotted in proportion to the percentage of the total vote that the parties receive. After gaining at-large seats, the various parties fill them with their nominees in the order in which their names appeared in their party lists published at the time of the election. Under this system, voters can only choose which party to vote for; they have no influence over which people the parties choose to propose in their party lists. The system is therefore only semi-democratic and is in urgent need of reform.
An even bigger question concerns Article 73, Paragraph 2 of the Civil Servants Election and Recall Act, which says that at-large legislators who lose their party membership after they have acceded to their posts will automatically lose their status as legislators, and the Central Election Commission (CEC) will write to the Legislative Yuan instructing it to revoke their titles.
The regulation goes on to say that the CEC must, within 15 days, issue a list of alternative electees to take over the seat of the outgoing legislator. One rationale for having such a regulation is that since at-large legislators are nominated by parties, it is natural that they should no longer be legislators after losing their party status. The other reason is that there is no procedure available for recalling at-large legislators, and that leaves removal or retention of their party membership as the only form of check and balance that can be applied to them. This logic was endorsed by Judicial Yuan Interpretation No. 331.
However, one point that needs to be clarified is that at-large legislators are still elected by ballots cast by the nation’s citizens, giving them democratic legitimacy. If you say that those who lose their party membership must then automatically lose their status as legislators, that is tantamount to letting the will of political parties override the will of the nation’s citizens. It also makes at-large legislators entirely dependent upon and obedient to the will of their parties, rather than being answerable to all the citizens of this country.
In that case, they are the people’s representatives in name only. For this reason, Interpretation No. 331, which was arrived at by the Justices of the Judicial Yuan in 1993, is inadequate and outdated and is in need of further deliberation.
That is why, as far as Wang is concerned, if he limits himself to civil litigation to confirm his continued membership of the KMT, for the sake of retaining his status as legislator and legislative speaker, it will give people the impression that he is only out to look after his own interests. If he cares about the nation’s long-term interests, he should use his influence to mobilize more than a third of all legislators to ask the Judicial Yuan for a constitutional interpretation, in accordance with the Constitutional Interpretation Procedure Act (司法院大法官審理案件法). The grounds for such a request would be that Article 73 of the Civil Servants Election and Recall Act contravenes the democratic principles embodied in Article 1 of the Constitution.
If that were done, it would enable the Council of Grand Justices to openly discuss and clarify the relationship between political parties, at-large legislators and the nation’s citizens. That would be the right way for Wang, as legislative speaker, to go beyond his own case and help to settle a greater question of principle.
Wu Ching-chin is an associate professor in the Department of Law at Aletheia University
Translated by Julian Clegg