Constitutionalism attempts to keep power politics in check to prevent the rule of tyranny. However, it is inevitable that some ambiguity and disagreements will occur when it comes to the meaning of constitutional law and constitutional morality.
People have to get involved, as these norms will not take effect on their own. The drawing and policing of “constitutional red lines” relies on the ceaseless deliberation and participation of the entire citizenry. The power elites cannto be expected to honor such “red lines” in good faith, nor can the Constitutional Court ne entrusted to uphold constitutional justice.
MA’S ‘RED LINES’
There are at least some constitutional “red lines” everyone seems to agree with, for example: The government cannot engage in illegal wiretapping.
President Ma Ying-jeou (馬英九) and the prosecutor-general have flatly denied that they did anything illegal. However, many people have raised reasonable doubts in this regard. While some issues concerning the interpretation and application of law remain unresolved, the settlement of this kind of constitutional dispute is contingent on whether investigations can reveal what really happened through legitimate procedures of constitutional inquiry.
This constitutional storm also touches on a normative dispute concerning where and how to draw the “red lines.”
With a lot of maneuvering from Ma, who is also chairman of the Chinese Nationalist Party (KMT), the KMT swiftly revoked Legislative Speaker Wang Jin-pyng’s (王金平) party membership over his alleged improper lobbying on behalf of Democratic Progressive Party (DPP) caucus whip Ker Chien-ming (柯建銘) in an attempt to cause Wang to lose his seat at the Legislative Yuan along with his position as legislative speaker.
Whether such moves are constitutional depends on how we think of the relationship and the boundaries between political party and state.
Two dimensions of party-state relations are involved here.
First, many people have strongly criticized Judicial Yuan Interpretation No. 331 and its subsequent codification by the Election and Recall Act (公職人員選舉罷免法) and have demanded that a fundamental reform be made to the system in which legislators-at-large lose their seats the moment they lose their party membership.
However, many people still hold on to the formalistic reasoning that a political party should be responsible for expelling legislators-at-large because they cannot be recalled like legislators elected from district elections can be.
The problem with this reasoning is that it totally ignores how hard it is to get rid of legislators with their own constituencies and how easy it is for a party to get rid of its legislators-at-large. This is an issue linked to the role political parties play in the nation’s representative democracy and is something worthy of further reflection and deliberation.
The second dimension of the party-state relations has to do with the relations that exist between party politics and the separation of powers. Can the president may openly interfere parliamentary affairs as long as he does so in the name of the party he leads.
Developments in party politics have indeed profoundly changed the order that the separation of powers was supposed to bring about according to classical constitutionalism. However, this does not mean that political parties can do whatever they want, especially a Leninist-style political party that simultaneously wields both executive and legislative powers.
This robs the separation of powers of its constitutional significance and allows those involved in politics to only have to care about their respective political parties while showing absolutely no regard for fidelity to the constitutional system.
If the lack of a robust parliamentary ethics law somehow can justify the president sticking his hands into issues of legislative self-rule, why would people not embrace authoritarian rule? It might outperform democracy in terms of efficient governance.
LESSON OF WATERGATE
When former US president Richard Nixon was forced to resign over the Watergate scandal, he said in his defense: “When the president does it, that means that it is not illegal.”
Two centuries earlier, former US president and particpant in the US constitutional convention James Madison famously wrote in the Federalist Papers arguing for ratification of the US Constitution: “Ambition must be made to counteract ambition.”
If there are limits to the use of Madisonian constitutionalism and if civic society is not vigilant enough to the power abuse disguised in noble causes, then regardless of how much the power elites may proclaim that they are respecting and following the constitution, really all they are following is the type of constitution that is devoid of any “red lines,” just like the one Nixon was referring to.
Su Yen-tu is an assistant research fellow at Academia Sinica’s Institutum Iurisprudentiae.
Translated by Drew Cameron