There is an interesting quote, commonly attributed to Otto von Bismarck, Germany’s “Iron Chancellor,” and variously translated into English as something like this: “Laws, like sausages, are best not seen being made.”
German sausages are known to be among the best in the world, but knowing what went into them during the production process, with the large amounts of offal, seasoning and “secret ingredients” that are added, the thought of eating them might be nauseating.
The implication of the quote is that people should perhaps avert their eyes when authorities are making laws, as laws are really tools to facilitate the desires of the powers-that-be. The dubious methods, measures and motives that underpin the whole process seem quite at odds with the beautifully presented finished product. As with laws, so with sausages.
In late 1993, hardly five years after the lifting of martial law, the Chinese Nationalist Party (KMT) passed three new pieces of legislation to consolidate the president’s power base.
These were the organic laws for the National Security Council, the National Security Bureau and the Bureau of Personnel Administration of the Executive Yuan. They were rushed through on the day before the sunset clauses within the Additional Articles of the Republic of China (ROC) Constitution came into effect, and forced through the legislature without being subjected to a clause-by-clause review.
No matter how much the opposition tried to boycott the passage of these laws, or how violent the physical confrontations between legislators became, then-deputy speaker of the legislature Wang Jin-pyng (王金平) was able to stand there, a smirk on his face, and announce that the three national security laws had been passed.
The public were up in arms, accusing the legislature of allowing itself to be operated as a mere legislative department working on behalf of the government.
For Interpretation 342, the Council of Grand Justices were asked the question: “Have the organic acts of the National Security Council, National Security Bureau and Bureau of Personnel Administration of the Executive Yuan been passed by the resolution of the legislature?”
Their rather verbose answer was as follows: “Where the procedures for enactment of the laws can be determined to be in contravention to the Constitution without investigation into the facts, ie where there are palpable material defects which are against the fundamental rules of enactment of laws, the authority responsible for constitutional interpretation may still declare it void. Where there is a dispute as to whether the defect is sufficient to affect the enactment of the laws to a grave extent and investigation is required, ie where it is not evident and, according to the current regime, the investigation of the facts thereof by the authority responsible for constitutional interpretation is subject to constraints, then the dispute shall be resolved in accordance with the autonomy rule of the Legislative Yuan... whether the protocols have been resolved is controversial and cannot be confirmed without investigation ... it shall be determined by the Legislative Yuan and shall be remedied within an appropriate period.”
In other words, even though the law in question could be declared null and void if thought to have been passed in blatant contravention of correct procedure, the legislature would still be expected to resolve the issue itself, and within a reasonable amount of time, should there be any doubt as to the way it was passed.
However, two decades later, nothing has been done. The bodies established by the unconstitutional passage of these three laws continue to exist, and the person who has just become secretary-general of the the National Security Council has been mouthing off in the US about how the protesters currently occupying the legislative chamber are guilty of “intolerable violence.”
That the same party in government now as was in power 20 years ago is still up to the same tricks is even more intolerable.
The ruling and opposition parties had come to a clear agreement to conduct a clause-by-clause review of the cross-strait service trade agreement, not to mention that such a review is required by Constitutional Interpretation 329 and Article 5, Paragraph 2 of the Act Governing Relations Between the People of the Taiwan Area and the Mainland Area (臺灣地區與大陸地區人民關係條例), given the nature of the agreement, it is essentially a quasi-treaty.
Yet the convener of the legislative session in question, KMT Legislator Chang Ching-chung (張慶忠), went aside and announced that he was bringing the session to an end, that the review had been concluded and that the agreement was being sent on to the plenary session.
All of this happened in the space of just three minutes. There is a six-minute window of opportunity to save a person’s life should they suffer a cardiac arrest. In half that time, the very survival of the nation was threatened.
As for the idea that the pact is an administrative order, that is simply ridiculous. Unless the government is going to announce that Taiwan is a province of China, and that Beijing has decreed that the agreement must be passed, how can it be regarded as an administrative order?
There are procedures in place in the legislature. Based on the democratic principles of majority rule and respect for the minority, these include substantial debate, equal weighting for all votes and transparency.
The Act Governing the Legislative Yuan’s Power (立法院職權行使法) clearly states that all judicial and budgetary cases should go through three readings and that all other laws should have two readings. In the second reading, the legislation is read out systematically, clause-by-clause and in sequence, with each clause scrutinized and discussed.
In this case, the government took it upon itself to sign the pact outside of the legislature, with no transparency, and even when it handed the agreement in its complete form to the legislature, Chang attempted to skip the review phase altogether, before it had been subjected to even the most cursory discussion.
There he was, hiding beside a toilet cubicle, announcing that the review had come to an end. How could this process be said to have been open or transparent?
Constitutional Interpretation 342 states: “Where there are palpable material defects which are against the fundamental rules of enactment of laws, the authority responsible for constitutional interpretation may still declare it void.”
If this is not a perfect example of where this interpretation should be applied, what is? Can a review really be completed in 30 seconds?
As soon as Chang declared that the agreement was to be sent directly to the plenary session, Executive Yuan spokesperson Sun Lih-chyun (孫立群) thanked the legislature for all the hard work it had done.
The executive branch was clearly helping Chang bring the review to a close. The behavior of the governing party caucus in the legislature on this occasion was a clear and blatant example of how the government views it as a law-making body subservient to the Cabinet — there simply to enact the legislation that the government wants.
It is widely acknowledged that there have been palpable material defects in the way the review of the agreement has been carried out. That much is not up for debate.
Any normal constitutional court, based upon the meaning of Interpretation 342, would proclaim it null and void. However, since the opposition has made no move toward seeking a constitutional interpretation on this, it appears that it has lost all faith in the Council of Grand Justices.
This is hardly surprising, as the council only came out with its Interpretation 718 on March 21, an interpretation that finally ruled as unconstitutional the requirement that organizers of a rally called in response to a sudden event must first obtain a permit.
The council has been rather reticent in protecting human rights and has been too willing to serve the interests of the authorities. It is because of this reticence that a full 16 years after Interpretation 445 on the Assembly and Parade Act (集會遊行法), long after the end of the Period of National Mobilization for Suppression of the Communist Rebellion (動員戡亂時期) and the lifting of martial law, and as recently as two weeks ago, the law still retained the ex ante assembly permissions system — or system of prior approval — and that this system had yet to be deemed unconstitutional, even though as early as 2008, during his first presidential election campaign, President Ma Ying-jeou (馬英九) undertook to change the permit system to a registration system.
This is just another concrete example of blatant complicity of the judiciary, following on from how the executive and legislative branches conspired together with their handling of the service trade agreement review.
It is no wonder that the public felt the need to take to the streets and occupy the legislature, even though they would be violating the Assembly and Parade Act.
The public have witnessed the making of this particular sausage, and no, it has not been pleasant viewing.
There is another session in the offing, the regulations the Judicial Yuan is drafting governing lay judges in reviews, for which it is refusing to listen to the opinions of judges or experts.
It is another example of a branch of government resisting democracy while purporting to further its cause.
Chien Chien-jung is a judge.
Translated by Paul Cooper