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Constitution deserves a closer look

`It is extremely difficult for the opposition parties to recall Chen at this moment since the case is tangled with complicated political issues. If the opposition parties do not think before they act, they will only embarrass themselves.'

The opposition parties are now planning to recall President Chen Shui-bian (陳水扁) in the wake of the DPP government's announcement that it would halt construction of the Fourth Nuclear Power Plant (核四). Opposition legislators still intend to amend the Law Governing Legislators' Exercise of Power (立法院職權行使法) to pave the way for the recall. Thus, the recall appears imminent, just like the firing of an arrow already fitted to the bow.

Careful examination of the law, however, reveals that it is extremely difficult for the opposition parties to recall Chen at this moment since the case is tangled with complicated political issues. If the opposition parties do not think before they act, they will only embarrass themselves.

First of all, according to Article 69 of the Public Officials Election and Recall Law (公職人員選罷法), officials who have been in their posts for less than one year shall not be recalled. Such a restric-tion, designed to give public officials security against recall within a certain period of time, reflects a worldwide consensus and is viewed as the basis of any recall law. Taiwan's Presidential and Vice Presidential Election and Recall Law (總統副總統選舉罷免法) does not specify such a restriction, but I believe Article 69 of the public officials law can also be applied to the president and vice president as well.

Thus, in accordance with that law, Chen shall not be recalled within a year of his inauguration on May 20. Since the law is "non-retrospection" (不溯既往), the opposition legislators' recent attempt to amend the law cannot deprive Chen of his above mentioned right.

Think about it. Even regular public officials' rights are protected by law. How can the president's and the vice president's rights not to be so protected?

I believe, therefore, that even if the legislators did pass a motion to recall the president in the Legislative Yuan, it is questionable whether the Central Election Commission (中央選舉委員會) would accept such a case. If Chen and his party members were to request a Council of Grand Justices' (大法官會議) interpretation of the recall's legitimacy, moreover, I don't believe the opposition parties would have a case.

Second, the president and the vice president are the heads of state. Their posts require stability so that they can serve the people without distraction. In fact, the presidents and vice presidents of many countries are endowed with rights of immunity (豁免權), and such countries also have very strict restrictions as to the impeachment or recall of their national leaders. They usually choose to impeach, not to recall.

Taiwan's opposition legislators, however, have chosen to recall Chen only for some abstract or ambiguous reasons, with subjective judgements toward Chen's personality and his performance as well. As a result, of course, it is unfair to recall the president, who was directly elected by the people of Taiwan, only for some vague reason.

From a political perspective, although the KMT and the PFP are working closely together to push for Chen's recall in order to overturn the DPP government. Each of these two parties has its own axe to grind.

If the KMT chose to impeach the premier, it might lose many of its current seats and become a minority party in the legislature after the next year's election while the PFP greatly expandsits seats. That's why the KMT has given up the impeachment and has chosen to work with the PFP to push for a recall. In the event that Chen really did step down, however, I believe KMT chairman Lien Chan (連戰) would lose the presidential election that would follow, leaving PFP Chairman James Soong (宋楚瑜) the only one to benefit. No wonder Soong was so eager recently to make peace with Lien.

According to Additional Article 3 of the Constitution, the premier shall be appointed by the president without the consent of the legislature. Since the president is directly elected by the voters of Taiwan and needs to be responsible for all the people and Premier Chang Chun-hsiung (張俊雄), as the chief-of-staff of the president, is directly appointed by Chen, how can the premier stay in his post while the president steps down?

To be more specific, if the opposition legislators chose to recall Chen to show their distrust of him, they would also be showing their distrust of the premier, which certainly must lead to an impeachment of the premier and a legislative election.

In such a situation, the president can therefore dissolve the legislature under the Additional Article 2 of the Constitution, forcing the opposition legislators to request an interpretation by the grand justices as to whether distrust of the president equals distrust of the premier.

The interpretation which the legislator's would wish for, however, that distrust of the president does not equal distrust of the premier, would not materialize, since it would make no sense. As a result, the KMT would suffer badly if the president actually chose to dissolve the legislature.

Some so-called senior constitutional experts in Taiwan have stressed that the president can be recalled if the majority in the legislature wishes it. Is this really true? Perhaps they should take advice from our young constitutional experts.

Lee Hong-hsi is a law professor at National Taiwan University.

Translated by Eddy Chang
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