After the legislature’s attempt at constitutional reform ended in failure in June last year, the only political agenda on the table seems to be the presidential and legislative elections.
However, the defects of the Constitution would not go away, but are bound to crop up after the elections. More likely than not, those defects would swiftly develop into serious constitutional controversies.
Estimates on the election’s outcome show that not only will Democratic Progressive Party (DPP) presidential candidate Tsai Ing-wen (蔡英文) defeat her rival by several million votes, but the DPP is also very likely to secure a majority of seats in the legislature.
Even if that does not happen, the alliance between the DPP and other political parties would surely win more than half of the legislative seats. Although the legislature does not have power over the appointment of the premier, the Constitution requires that the Cabinet answer to the legislature.
Following legislative elections, the Cabinet resigns according to precedent and the constitutional interpretations by the Council of Grand Justices, and the president appoints a new premier, who forms a new Cabinet.
Before President Ma Ying-jeou (馬英九) won the previous presidential election, he announced that if he were to win the election, he would appoint the leader of the majority party to form the Cabinet. This means that after the election on Saturday next week, Ma might appoint the DPP’s leader as premier. Allowing the majority party to form the Cabinet has been a long-term strategy of constitutional reform followed by Chinese Nationalist Party (KMT) presidential candidate Eric Chu (朱立倫).
If Ma really asks Tsai to form a Cabinet, how should the DPP respond? Or, conversely, should the DPP take the initiative to form a Cabinet next month and announce that it would put forward a vote of no confidence if anything other than a DPP Cabinet is opted for.
However, the situation seems to be that Ma wants to proceed with his “unification legacy,” so he has no intention to let the DPP form a Cabinet.
The DPP also does not want to take over executive power three months before the next president is sworn in. It would actually prefer the current government to continue to make a fool of itself.
However, due to the following reasons, the DPP should demand that it be allowed to form a Cabinet next month.
The first reason is to prevent the government from continuing to tread water.
After the nine-in-one elections in 2014, the KMT government has been practically sitting idle, hardly achieving anything. After the election, the Ma administration might lose any democratic legitimacy to make decisions on behalf of the nation.
If the administration insists on forming a Cabinet, its policy declaration to the legislature would hardly be meaningful.
The second reason is to prevent Ma from getting too aggressive.
Ma’s policies, such as the attempt to join the China-led Asian Infrastructure Investment Bank, his meeting with Chinese President Xi Jinping (習近平) in Singapore, the cross-strait trade in goods negotiations, the policy to ease the restrictions on hiring white-collar workers from abroad and the like show that Ma is steadily facilitating his own cross-strait agenda.
However, without the support of the Cabinet, these attempts can accomplish nothing.
The third reason is to prevent the executive power from being manipulated.
Since certain budgets have already been passed in the legislature, the executive has plenty of room to maneuver, such as appointing officials, approving projects, legal bills — like the bill on an oversight mechanism for cross-strait agreements — and decrees. Rumors and signs hint that the executive branch has been making arrangements. The nation cannot stop the KMT from selling its party assets, so is the DPP going to let the nation lose its administrative resources as well?
Lastly, and most importantly, if the DPP wins more than half the seats in the legislature, not only would it have the right and the opportunity to form the Cabinet, it would also have the responsibility to do so, bestowed on it by the Constitution and the public. If the DPP renounces its constitutional right to form the Cabinet, what excuse would it have to complain about Ma’s continued aggression and the idleness of the executive organ? Tsai said that the DPP was ready to run the nation and carry out reforms. Then why would the party let the nation suffer four more months under the KMT government?
The DPP is quite likely to procrastinate, but a legislative session must be conducted on Feb. 1 by the next legislature. A legislative speaker and their deputy must be elected by the lawmakers. Hence the impartiality of the speaker and legislative reform cannot be avoided. The least thing that can be done after a new legislative speaker and deputy speaker are elected is to prevent them from engaging in party affairs and taking on positions in the parties, so that absolute impartiality can be ensured.
Political party negotiation system should be abolished and replaced with conference committees, which is in line with the legislative reform that the public has been hoping for.
Another relevant, yet indirect, question worth considering is: Should the president be allowed to also act as party chair? I have long advocated that presidents should remove themselves from political party engagements and should not take on the role of party chairmanship.
The political war between Ma and Legislative Speaker Wang Jin-pyng (王金平) had severe repercussions. As the commander in chief, the president should, according to the Constitution, be impartial. Hence, to reform the legislature and keep the speaker impartial, the presidency should also be reformed with the aim of keeping it impartial. The best policy would be to formulate an act to govern how presidents should exercise their authority.
This involves yet another presidential prerogative, namely the delivery of presidential addresses, including policies on national security, to the legislature. This is already “doable” in the current system. The question is, would a legislature controlled by the DPP allow this to happen? It is unlikely, but if the DPP, which is extremely fearful of the parliamentary system, intends to let the presidential office become the highest executive organ, although that defies the Constitution, the party should invite the president to give a presidential address and make this practice a constitutional precedent.
Under the presidential system, the president and the parliament confront each other, and the president must rely on their charisma to win parliamentary support or to minimize parliamentary opposition. A president who is not clear on what they want and who cannot deliver a speech without notes cannot handle this system. A president who relies on discipline to restrain his party members, abuses the judicial system, makes dishonest deals with the private sector, asks premiers or ministers with little public support to shoulder the responsibility of reform, conducts frequent national affairs conferences and makes himself an icon through the power of the media, would only make a fool of himself and achieve no concrete results to speak of.
The foundation for Taiwan’s democracy is still weak and the constitutional system has a plethora of problems, and only some of them can be touched upon here. After the election, the KMT, or the pan-blue camp, would for the first time become a true opposition party.
Constitutional operations would not become smooth right away and for the next few years comprehensive constitutional reform would become an important task for Taiwan as it moves on to its second democratic reform.
The DPP, which is likely to take the KMT’s place as the dominant party in Taiwan’s political landscape, must not become addicted to power. It must not allow victory in the elections to cause it to lose sight of what it set out to achieve in the first place.
Yen Chueh-an is a professor of law at National Taiwan University and a managing supervisor at the nongovernmental organization Taiwan Democracy Watch.
Translated by Ethan Zhan
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