Despite repeated calls to abolish the Control Yuan, President Tsai Ing-wen’s (蔡英文) advocation of a cross-party legislative commission to amend the Constitution and Control Yuan President Chen Chu’s (陳菊) — perhaps self-deprecating — claim that she would be the institution’s last president, a full slate of Control Yuan members have been appointed.
The Democratic Progressive Party (DPP) is unlikely to want them all to step down after passing a constitutional amendment abolishing the institution in 2022.
Moreover, the Control Yuan was recently partially transformed into a National Human Rights Commission (NHRC) and it also plans to establish an inter-branch coordination/contact group.
It thus seems there is only a small chance that the Control Yuan will be abolished. Given this, how should the branch be operating under the Constitution in its current form?
First, what are the capabilities of the newly established NHRC?
The Organic Act of the Control Yuan National Human Rights Commission (監察院國家人權委員會組織法) brings nothing new to the table. The NHRC possesses soft powers, limited to research, making recommendations and publishing reports; it has no authority to exercise external power in the public sphere.
Furthermore, Article 2 of the act states that the commission’s task is to “investigate incidents involving torture, human rights violations or various forms of discrimination based on its powers or complaints from the general public, and handle them and provide remedy according to the law.”
However, as there still is no concrete authorization for the investigation, handling and provision of remedy mentioned in that paragraph, the commission is limited to investigating and impeaching government officials. This is no different from its current mandate.
According to proposed amendments to the Control Act (監察法) — which are under review by the Legislative Yuan — to conform with the requirements of the UN’s Principles Relating to the Status of National Institutions, more commonly known as the Paris Principles, the Control Yuan is to be given authority to carry out compulsory investigations of “private individuals.”
If a member of the public refuses to cooperate with an investigation, the NHRC may financially penalize the individual, and can continue to do so until the individual rectifies their actions.
The Constitution clearly stipulates that the Control Yuan’s powers are limited to “consent, impeachment, correction and auditing.” To exercise these powers, it is given the additional authority to “access” documents and materials from “government agencies” or conduct “investigations.”
That regulation seems to transform the Control Yuan from a tame cat to a fearful tiger, although it goes beyond the institution’s constitutional remit.
The Constitution clearly restricts the Control Yuan’s powers to “consent, impeachment, censure and auditing.” For the Control Yuan to exercise those powers, it can also request documents and orders from, or investigate, government agencies.
No matter how you interpret it, these powers are specifically limited to “government agencies” — so how is it possible to justify their use to investigate and punish “private individuals?”
The Paris Principles have not been incorporated into domestic law, nor do they supersede the Constitution. The Constitution gives the Executive Yuan and the Legislative Yuan summary and wide-ranging powers to regulate the behavior of members of the public. This means that both institutions can extend their investigatory powers to “private individuals.”
However, from the point of its inception, the Control Yuan was set up to strictly punish errant officials and supervise the government. As the Control Yuan is only able to investigate government agencies, it follows that the NHRC has no authority to investigate and punish private individuals.
Moreover, Constitutional Interpretation 633 established that while the investigation commission established by the Act of the Special Commission on the Investigation of the Truth in Respect of the 319 Shooting (三一九槍擊事件真相調查特別委員會條例) has the authority to carry out investigations, it does not have the authority to impose financial penalties and that doing so can only by done by a court of law.
If that special commission, which is subordinate to the Legislative Yuan, cannot impose financial penalties, then it follows that the NHRC, which is subordinate to the Control Yuan, should not be permitted to impose penalties.
The powers granted to the NHRC in the proposed amendments to the Control Act seem to violate the Constitution and infringe on human rights.
As for the inter-yuan coordination/contact group, there are unfortunately also major problems. According to a press release issued by the Control Yuan, the motive for establishing the group was to reduce cumbersome and time-consuming procedures when accessing files from the Judicial Yuan.
If it is only aimed at streamlining complicated administrative procedures, then the Control Yuan should simply ask the Judicial Yuan to consider amending the regulations, or the presidents of each branch should just pick up the telephone and contact each other directly. Is it really necessary to establish a permanent contact group for these kinds of one-off matters?
However, what is truly shocking about the press release is that it states that “the group will create a good communication and coordination channel for the twin powers of the two branches.”
If, as Chen has stated, an important function of the Control Yuan is to provide “checks and balances to judicial power,” then the two branches should be independently exercising their powers, not pooling them.
The Control Yuan has impeached prosecutors and criticized judges over their legal opinions in certain cases. This has raised serious doubts among members of the public and in legal circles concerning how the Control Yuan would continue to monitor violations of justice.
If both branches are now able to communicate and coordinate with each other, this opens the door to the possibility of applying pressure and lobbying.
There is an argument to be had over whether to continue with or abolish the Control Yuan.
However, the government cannot on the one hand call for it to be abolished, while on the other hand indiscriminately expand its powers.
If the government believes that the Control Yuan is not functioning well, then it should have amended the Constitution to give it more powers, rather than abolish it.
If the government does not intend to do this and instead opts to tinker around with the Control Yuan without amending the Constitution, it would be better just hold a referendum on its abolition in the 2022 local elections and be done with it.
Liao Yuan-hao is an assistant professor of law at National Cheng Chi University
Translated by Edward Jones
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