Law change required to control Ma

By Yen Chueh-an 顏厥安  / 

Fri, Oct 18, 2013 - Page 8

The atmosphere of the Oct. 10 Double Ten National Day celebrations was marred this year by protests, as the ongoing political storm stubbornly refuses to blow over.

The public took to the streets to call on President Ma Ying-jeou (馬英九) and Premier Jiang Yi-huah (江宜樺) to step down. Protesters wanted the Referendum Act (公民投票法) amended, railed against the lack of transparency in the cross-strait service trade agreement negotiations, demanded the immediate cessation of construction of the Fourth Nuclear Power Plant and demanded the abolition of the Special Investigation Division (SID) of the Supreme Prosecutors’ Office.

Neither Ma nor Jiang have any political legitimacy left, but their hold on power is being protected by the way the political system is constructed. It would be extremely difficult to impeach or recall the president, although the legislature could have been dissolved had the no-confidence motion against the premier — for which there is a more attainable threshold — succeeded.

The president’s perceived unconstitutional behavior brings up questions regarding the limits of his powers. If the Constitution is unclear on these, legislation needs to be created to establish the limits.

The Constitution contains legislation that governs the seven organs of government. In addition to the Act Governing the Legislative Yuan’s Power (立法院職權行使法), the legislature created rules for the now-defunct National Assembly. The Control Act (監察法) and the Act Governing the Administration of Examination (典試法) essentially limit the powers of the Control Yuan and the Examination Yuan respectively. Judicial powers reside in each court and cannot be governed by legislation.

The situation regarding the Executive Yuan is more complex. Article 53 of the Constitution states: “The Executive Yuan shall be the highest administrative organ of the State.”

However, after the Constitution was amended so the president was chosen in direct elections and given the right to directly appoint the premier, Article 53 was effectively nullified.

The person invested with the powers of commander-in-chief of the armed forces, director of national defense policy, nominator of the premier, issuer of emergency directives, and employer of government ministers and senior military officers must be the head of the “highest administrative organ of the State.” Therefore, the national system of constitutional government is basically a presidential system.

Under the US’ presidential system, the appointment of Cabinet members requires congressional approval, but in Taiwan, the president can unilaterally form his Cabinet. Had the no-confidence motion been passed, the legislature would have been affected more than the president. Had it been dissolved, Ma would have enjoyed more than two months of being able to govern without legislative interference. The so-called “dual executive” semi-presidential system exists only in theory, not in practice.

Recent events demonstrated that there is too much confusion regarding the exact nature of presidential power. There are too few checks and balances to the post. Ma is prepared to abuse the system and eavesdrop on the legislature, and has abused his position as Chinese Nationalist Party (KMT) chairman to try and rid himself of Legislative Speaker Wang Jin-pyng (王金平).

Lawmakers’ best weapon is their ability to legislate. Because constitutional amendments are procedurally complex, they would best be achieved through new legislation governing presidential powers. This would be an important way to reflect public opinion and would be more democratic than leaving it to the Council of Grand Justices to decide.

What would such legislation entail? Because the use of executive powers requires legal authorization, such legislation should concentrate on the procedures, methods and information regarding constitutional powers, as well as status and finances. Since the president needs to bear in mind civil society and the disadvantaged, it would not be excessive to require him to consult with the legislature and non-governmental organizations prior to nominating grand justices or Control Yuan members.

According to the Constitution, the legislature should decide issues of national importance, which would of course include cross-strait affairs. The president should discuss any major policies with it prior to implementing them, and even seek its authorization. Otherwise, it would be very difficult to retract a policy once it had been instigated.

Complete records should be kept of all data, telecommunications and recorded material, which should eventually be declassified and released, or made available to investigators.

Since the Constitution requires the armed forces to be given precedence over party affiliation, it follows that the president should not concurrently hold the position of party chairman.

History has shown that the president’s finances should not only be transparent, they should also be placed in a compulsory trust.

The more laws there are, the more complicated situations become and the more difficult it is to guard against abuses of power. Nevertheless, if shameless politicians given to pathological lying find it difficult to achieve even minimal standards of moral integrity, legislation must be created that can provide the proper checks and balances.

This is a general direction in which to proceed, but, aside from drastic and disruptive measures such as presidential impeachment or recall, how else can the legislature penetrate the Cabinet’s armor and use the law to directly constrain a president who has power without accountability?

Yen Chueh-an is a professor at National Taiwan University’s College of Law and a supervisor of Taiwan Democracy Watch.

Translated by Paul Cooper