Fri, Mar 22, 2024 page8

• Parliamentary democracy needed

  • By Howard Shen 沈正浩
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  In a classic presidential system, which the US adopts, the separation of powers — the one between the executive and the legislative branches in particular — prevents a single branch of government, or an individual, from amassing too much power.

  As confusing as the US Congress might seem to be at times, it could be a source of inspiration for the Taiwanese legislature.

  It is no coincidence that the caucus leaders from the three political parties in the Legislative Yuan are in the Judiciary and Organic Laws Committee for the new legislative session.

  This is because the results of January’s presidential and legislative elections showed that most Taiwanese were dissatisfied with the government’s constitutional structure, specifically the lack of institutional checks and balances against the ruling party. Before the elections, some even flirted with the idea of restoring parliamentary superiority in Taiwan.

  In the early versions of the Constitution, the founder envisioned a system with the spirit of parliamentarism, in which the premier would be accountable to the legislature and lead the highest administrative organ, the Executive Yuan.

  That all changed after the third set of the Additional Articles of the Constitution of the Republic of China (中華民國憲法增修條文) were added to the Constitution in 1994. Then-president Lee Teng-hui (李登輝) led the effort in popularizing the presidential election, which was originally conducted through the now frozen National Assembly.

  Lee’s amendment to the presidential election rules changed the equation between different institutions, turning from revised parliamentarism to semi-presidentialism.

  Taiwan’s system became characterized by a popularly elected president coupled with a premier, whom — according to the amended constitutional design — the president could appoint or sack however they please without the assent of the popularly elected legislature.

  It gave rise to a subcategory under semi-presidentialism that would later be called “presidential supremacy,” or conveniently, “super-presidentialism,” in the case of Taiwan.

  That was best demonstrated by former president Chen Shui-bian (陳水扁) of the Democratic Progressive Party (DPP) when he appointed six premiers over the span of eight years without once consulting the Chinese Nationalist Party (KMT), who held a majority of the legislative seats.

  As the president has de facto control over the appointment of the premier and the premier has the power to legislate by introducing government-sponsored bills, the president — in practice — reigns over the executive and the legislative branches when the legislative majority is also the presidential majority.

  This is exacerbated by the Taiwan-specific phenomenon where the president almost always controls their political party, reducing hurdles to total control over all branches of the government to near zero.

  The significance of direct presidential elections to the democratization of Taiwan has made it challenging for any political party to second guess or question the amended constitutional design. However, there are sub-constitutional changes the new Legislative Yuan can take charge of in the next four years, with the US Congress as an inspiration.

  The new Legislative Yuan should normalize a presidential address to the Legislative Yuan.

  Although the Act Governing the Legislative Yuan’s Power (立法院職權行使法) has already established its legal basis and has provided legislators with the opportunity to ask the president for additional information pertaining to the address, the president is not required nor obligated to address the Legislative Yuan.

  The last presidential address to the legislature was Lee’s address to the National Assembly in 1999, when it was still a part of the tricameral legislative system along with the Legislative Yuan and the Control Yuan.

  President-elect William Lai (賴清德) did not receive a majority of the popular vote and his party, the DPP, failed to secure a plurality in the Legislative Yuan. Lai’s “dual minority” should expect more legislative scrutiny.

  Drawing inspiration from the US Congress, the new Legislative Yuan should introduce nomination hearings and confirmation processes for ministerial nominees so that controversial ministerial nominations would not go unaddressed.

  It should also plan to introduce power to pass a resolution of contempt, which would be considered privileged once tabled, along with powers of inquiry — having hearings to gather information — to hold executives accountable for their uncooperative or arbitrary actions.

  Under the current separation of powers, the legislature does not have any effective countermeasures against uncooperative executive officers. The investigative power solely lies in the Control Yuan.

  If the Legislative Yuan has the power of inquiry and the power to investigate, witnesses who refuse to comply with subpoenas or executive officers failing to answer questions in a cooperative manner could be held in contempt after a thorough investigation.

  The powers, not necessarily the execution thereof, would protect proper legislative checks against the executive power.

  To quote economist Thomas Schelling: “The power to hurt is most successful when held in reserve, [because] it is the threat that can make someone yield or comply.”

  National Yang Ming Chiao Tung University professor Carol Lin (林志潔), the DPP’s legislative candidate for Hsinchu City, cannot have been serious when she said the US’ separation of powers and regulations on the conduct of legislators are the prerequisites for introducing a “contempt of the legislature” charge to the Legislative Yuan.

  The power to find a person in contempt of the legislature could also be found in Australia, Canada and the UK, where executive-legislative “power fusion” defines their political system. In addition, the power is to serve as a crucial mechanism for upholding the privileges of the Legislative Yuan and protecting it from executive aggrandizement.

  It turns out she was the one “taping a dull vegetable knife to the end of a bamboo pole and calling it a spear.”

  The existing provisions on the power of the Legislative Yuan do not guarantee the legislature’s ability to carry out its functions and duties.

  Contempt resolution, power of inquiry and power to investigate, coupled with normalizing a presidential address to the Legislative Yuan, if successfully introduced, would become the opposition’s key institutional mechanisms to hold the government accountable and retrieve the institutional justice that Taiwanese deserve.

  Howard Shen is assistant director of international affairs for the Chinese Nationalist Party (KMT).
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