Former president Chen Shui-bian (陳水扁) wrote a letter to President Ma Ying-jeou (馬英九) from the Taipei Detention Center last month, imploring him to help remove the overseas travel restrictions placed on his daughter Chen Hsing-yu (陳幸妤). In response to the letter, Presidential Office Spokesman Wang Yu-chi (王郁琦) said that not commenting on individual judicial cases has always been the office’s stance and that it is impossible for Ma to interfere in any judicial decision.
Wang said that the president, with his supreme administrative power, has to act with caution and without interfering in judicial power. I certainly agree with this spirit and principle 100 percent.
However, the Constitution allows interaction between administrative and judicial powers. Ma can “interfere” in several ways.
At the level of direct judicial interference, the president has the power to grant pardons. This is a typical example of how the president can use his executive power to intervene in socially or politically controversial cases. It is a presidential right that needs neither the legislature’s consent nor the Judicial Yuan’s endorsement.
There are two kinds of past examples. The descendants of key officials who have made extraordinary contributions to Taiwan — the murderer Huang Hsiao-hsien (黃效先), for example, was pardoned by dictator Chiang Kai-shek (蔣介石) thanks to the great achievements of Huang’s father General Huang Pai-tao (黃百韜). Political prisoners or prisoners of conscience who commit crimes for “good causes” — those who refuse to perform their military service because of religious beliefs, labor activists, or people such as “rice bomber” Yang Ju-men (楊儒門).
In addition, the president has the power to grant amnesties and the remission of sentences for specific types of cases. Pardons are for individual cases, but amnesties and remission of sentences are for specific types of crimes with broader implications and they can only be implemented with the approval of the Cabinet and the legislature.
Next, the president can interfere with the ongoing creation of legislation through his power to appoint judicial personnel. He can nominate the Judicial Yuan president and grand justices, all important judicial leaders. Grand justices interpret the Constitution and these interpretations control how the law is applied.
US presidents often attempt to create a legal environment favorable to themselves through the nomination of justices. Although they do not necessarily always get what they want, they can at least secure the legal basis of their policies by nominating judicial personnel who share their stance.
Taiwan’s president is endowed with the same constitutional power and there is no need to hide the fact that all presidents have the same idea.
Finally, there is judicial reform policy and legislation. Ma will now serve concurrently as the Chinese Nationalist Party (KMT) chairman, the nation’s highest administrative leader and the leader of the largest party in the legislature. He can, through the Ministry of Justice, demand that the ethics of the prosecutorial system be corrected and that corrupt and unethical judicial personnel be arrested. He can also push legislation on judicial reform through the legislature.
The president can interfere with the judiciary based on the Constitution, because the separation of powers were intended to make it possible to balance judicial power with administrative power. Particularly on the policy and legislative level, I hope the president will interfere with the judiciary more frequently in order to advance the judicial system.
Chiang Ya-chi is a doctoral student at the University of Leeds’ School of Law.
TRANSLATED BY EDDY CHANG
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