Wed, Jun 12, 2024 page8

• Proper way of constitutional reform

  • By Yao Meng-chang 姚孟昌
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  The constitution lays down two guiding principles for the Republic of China’s governmental structure: the “separation of powers and of checks and balances” and the “cooperation between state organs to uphold each other’s effectiveness.”

  The grand justices have often reinforced these two principles through constitutional interpretations, emphasizing that all constitutional bodies have a duty of loyalty to the “constitutional order of liberal democracy.”

  Chinese Nationalist Party (KMT) Chairman Eric Chu (朱立倫) recently challenged the roles of the Control Yuan and Examination Yuan, two of the five branches of government.

  “How are we to make the Control Yuan and Examination Yuan acceptable in the eyes of Taiwanese without changing the original text of the Constitution? Cutting or freezing the budgets are the only conceivable solutions. President William Lai (賴清德) needs to properly re-evaluate the functions of both branches instead of immediately drawing up a list of nominees,” Chu said, referring to the president’s duty to nominate all members of the two yuans, including their presidents and vice-presidents.

  While not as extreme as the calls from KMT caucus whip Fu Kun-chi (?) or Taiwan People’s Party (TPP) Legislator Huang Kuo-chang (黃國昌) to abolish the Control Yuan outright, Chu’s comments hint at a probable move by the KMT to freeze the budgets of both bodies and reject the presidential nominees — possibly aiming to shut down the yuans altogether.

  The current political climate evokes chilling memories. In 2005, the Legislative Yuan Procedure Committee abused procedural rules: A KMT and People First Party coalition refused to ratify then-president Chen Shui-bian’s (陳水扁) list of nominees, resulting in a political deadlock that paralyzed the Control Yuan for more than two years.

  The Control Yuan, as a constitutional body, exercises powers of impeachment, censure and audit. It is also responsible for the execution of the Sunshine Acts, a set of laws aimed at preventing corruption and the deleterious effects of money in politics, such as the Act on Property Declaration by Public Servants (公職人員財產申報法) and the Act on Recusal of Public Servants Due to Conflicts of Interest (公職人員利益衝突迴避法).

  The Control Yuan comprises a number of committees, including the National Human Rights Commission, tasked with upholding constitutional protections for people’s rights, ensuring social justice, and establishing universal human rights values and standards in line with international norms.

  The Examination Yuan is the highest examination organ of the state, responsible for legal matters related to examinations, the appointment and dismissal of public servants, insurance, pensions, retirement, performance appraisal, scales of salary, promotions and commendations.

  According to the constitutional guiding ethos of “separation of powers, equality of arms,” the Control and Examination yuans are on equal footing with the Executive, Legislative and Judicial yuans.

  Both the Control and Examination yuans hold significant constitutional powers and the Constitution ensures their independence.

  Although the Legislative Yuan has the authority to review and reduce budgets for the two chambers, it must be careful not to misuse its powers in a way that impedes the proper functioning and statutory duties of the bodies.

  The grand justices stated in Constitutional Interpretation No. 601 that the “Legislative Yuan, when performing its right to budgetary review, shall adhere to limits set by the Constitution, and shall not infringe upon the independence of the judiciary nor on the principle of separation of powers. The budgetary authorities must not influence the exercise of power of the Justices through annual budget reviews.”

  Additionally, should there be a need for an inquiry during budgetary reviews, the Legislative Yuan can invite the heads of the Control and Examination yuans to present their views at a plenary meeting, pursuant to Constitutional Interpretation No. 461 and Article 71 of the Constitution.

  However, the president, vice-president and members of the chambers are entitled to decline the invitation and are not required to answer questions according to Article 67, Paragraph 2.

  These laws follow the principle of mutual respect among constitutional bodies.

  By contrast, following Chu’s suggestions — such as arbitrarily slashing budgets or questioning the presidents of the Control and Examination yuans under the guise of a budget review — would cause the Legislative Yuan to overstep its authority and disrupt the constitutional balance of power.

  Taiwan’s constitutional framework is founded on the separation and balance of five bodies. Before attempting to amend the Constitution to abolish the Control and Examination yuans, the Legislative Yuan should first properly exercise its constitutional responsibilities.

  Given its authority over personnel appointments and budgetary resolutions, the Legislative Yuan must work to maintain the existence and proper functioning of all state bodies. As such, when the president nominates the heads and members of the Control and Examination yuans, the Legislative Yuan should thoroughly and responsibly review the nominees.

  When the KMT and TPP caucus leaders proposed abolishing the Control Yuan, 30 Democratic Progressive Party (DPP) legislators — including Chen Ting-fei (陳亭妃) — co-signed a bill advocating for the abolition of the Examination and the Control yuans and to have their powers transferred to the Executive and Legislative yuans. The number of signatories for the constitutional amendment bill has reached the threshold of one-quarter of the legislators required to propose such an amendment.

  The proper course of action lies in amending constitutional procedures, affirming the powers of the Control and Examination yuans, and re-establishing the checks and balances among the five state organs.

  Legislative Speaker Han Kuo-yu (韓國瑜) should urge the KMT, TPP and DPP caucuses to negotiate the establishment of a constitutional amendment committee to launch a legislative constitutional reform project.

  Gathering suggestions, fostering discussions and informing the public about the true purpose of constitutional reform are essential to garnering support.

  All these measures would ensure the durability and solidity of Taiwan’s democratic constitutional governance.

  Yao Meng-chang is an assistant professor in Fujen Catholic University’s Department of Postgraduate Legal Studies.

  Translated by Gabrielle Killick
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