Allegations of improper lobbying in a case involving Democratic Progressive Party (DPP) Legislator Ker Chien-ming (柯建銘) have led President Ma Ying-jeou (馬英九) to punish Legislative Speaker Wang Jin-pyng (王金平) through the disciplinary procedure of the Chinese Nationalist Party (KMT), to which Ma and Wang both belong. The Special Investigation Division (SID) of the Supreme Prosecutors’ Office held a press conference about the case on Sept. 6. Several press conferences followed, called by Ma and Prosecutor-General Huang Shih-ming (黃世銘).
The astonishing thing about these press conferences is what they revealed about how little the nation’s leaders and law enforcement officials understand about the rule of law. They explained their actions based on the morality of severely punishing those guilty of wrongdoing, while completely overlooking the limits on power laid out in law and the Constitution. They are stuck in the days of morality-based politics as opposed to rule-of-law politics.
The important issue from this episode is this lesson regarding the rule of law. Legal regulations that could have been used to impose judicial penalties for improper lobbying exist, but were not used. Article 17 of the Legislators’ Conduct Act (立法委員行為法) states that legislators are not permitted to allow anybody to entrust them with lobbying about ongoing judicial cases. The procedure prescribed in the act for dealing with such improper lobbying is to submit the matter for deliberation by the Legislative Yuan’s Discipline Committee, which should then submit a report for discussion and handling by the full membership of the Legislative Yuan. However, Ma chose instead to hold a press conference and demand Wang’s resignation.
Ma demanded high “moral” standards and called on Wang to resolve the issue of his own accord, rather than working through the existing laws. What he overlooked is that a moral approach could cloud his judgement of the facts. Furthermore, the most basic principles of procedural justice demand that people involved in a case should be given an opportunity to defend themselves.
The most important question to ask is: How can the carefully constructed system of rule by law be ignored in this way?
Ma and Premier Jiang Yi-huah (江宜樺) have declared that Wang is unfit to serve as legislative speaker based on their personal moral standards. When Wang proved unwilling to resign, they turned party disciplinary measures to protect “the party’s reputation.” However, how can it be permissible to use the disciplinary procedures of a particular party to bring down the legislative speaker, while ignoring the constitutional principles of parliamentary self-discipline, checks and balances, and separation of powers, as confirmed by the Judicial Yuan’s constitutional interpretations Nos. 435 and 499?
Although at-large legislators are nominated by political parties, when they take their oaths and assume their seats they become a part of an important institution that represents the nation’s citizens under our system of government. They do not primarily represent their parties. Article 66 of the Constitution says that the legislative speaker is to be elected by and from among the members of the legislature, not appointed by any political party. That being the case, how is it acceptable for any political party to remove the legislative speaker unilaterally?
Unlawful lobbying is not punished with criminal penalties. The prosecutor-general and the SID are responsible for investigating and bringing charges in criminal cases. In the current controversy, they have been stressing the morality of improper lobbying, but does that entitle them to go beyond their roles by handling administrative investigations? In so doing, they are taking the place of the legislature in relation to its members, prosecutor’s evaluation committees and the Ministry of Justice in relation to prosecutors, and the Control Yuan in relation to the Minister of Justice.
Does a case of improper lobbying entitle them to employ severe methods normally reserved for serious criminal cases, such as telephone tapping and wrongfully gaining access to telephone records? Most serious of all, they have gone beyond the bounds of judicial independence by leaking the content of telephone wiretaps — which Article 18 of the Communication Security and Surveillance Act (通訊保障及監察法) says should not be made public — reporting them to Ma and making them public through press conferences. Astonishingly, they still do not seem to recognize that they have overstepped their legal powers.
Modern democracy stresses the importance of leaders abiding by the law in order to protect citizen’s constitutionally guaranteed rights from the abuse of power. For that reason, when those in power seek to pass laws that limit citizen’s freedoms they must pass legislative and judicial review.
However, in the midst of these controversies the president and the prosecutor-general have used morality to justify their over-inflated powers, while ignoring the systems and limitations laid out in the Constitution and other laws.
Under a modern political system with pluralistic values, one-sided moralism cannot justify exceeding constitutional and legal limits. If there is anything to be learned from the current political strife, it is this important lesson about the rule of law.
Lin Chia-fan is chair of the Department of Civic Education and Leadership at National Taiwan Normal University.
Translated by Julian Clegg