During a hearing at the Constitutional Court on Tuesday, Taiwan People’s Party (TPP) Legislator Huang Kuo-chang (黃國昌) and Chinese Nationalist Party (KMT) Legislator Weng Hsiao-ling (翁曉玲) were left flummoxed, despite their credentials.
Facing the widely shared view among legal experts that a TPP-KMT-backed bill to expand legislative powers is unconstitutional, Huang responded with rhetoric, protesting that “the pan-green camp can do it, but we cannot” — which was an attempt at deflection.
The KMT and the TPP cannot rationally discuss the “principle of separation of powers” as delineated in the court’s interpretations No. 585, 633 and 729, as well as the principle of legal clarity, comparative law and proper legal procedures.
What constitutional grounds could be used to expand the legislature’s powers?
The court reviewed the case, thoroughly exposing the unconstitutionality of the bill, which was an attempt to grab more power.
Weng has provoked anger with comments such as those saying that the badminton gold-medal win at the Paris Olympics by Lee Yang (李洋) and Wang Chi-lin (王齊麟) was “the pride of Chinese people.” The form of her arguments defending the comment was addressed by Lee Chuan-he (李荃和), the Executive Yuan’s legal representative who filed the lawsuit.
Lee Chuan-he was raising the issue of “counterquestioning.”
Throughout the hearing, neither Huang or Weng could clearly define what “counterquestioning” entails, even though they support the bill, which would force people to answer questions in the legislature.
They could not produce a single example of comparative law to support the idea, because the bill’s “penalty for counterquestioning” is the first such proposal in the world.
Democracies such as the UK, the US, Germany, France, Japan and South Korea do not have a system of penalties for “counterquestioning” as is proposed in the bill, so the two parties have no example of a counterquestioning penalty.
The democratic world does not concentrate government powers into a single branch. The constitutional value of a legislature not expanding its powers is clear.
Thirty international academics, including former American Institute in Taiwan directors William Stanton and Stephen Young, have also commented on the matter, saying that the blue-white camps’ bill to expand the legislature’s powers “exceeds the scope of democracies in the international community, overturns the concept of the rule of law and contravenes procedural justice.”
Furthermore, the European Chamber of Commerce Taiwan, which has invested more than US$70 billion in the nation, issued a warning as soon as the bill proposed a criminal charge for “contempt of the legislature.”
The Economist said that the bill was “a legislature expanding its powers and ruining the separation of powers. The board would be re-evaluating Taiwan’s democracy ranking.”
The Financial Times did not mince words, saying that the expansion would “create an opportunity for China to infiltrate Taiwan.”
In addition to the democracies of Europe and the US viewing the bill with a great deal of skepticism, Taiwanese legal experts and the legal field in the nation also concur that the proposed expansion of legislative powers is unconstitutional.
Moreover, 123 professors of law from universities across Taiwan have signed petitions saying that the proposal “is procedurally flawed and defective, and its contents contravene the constitution.”
The Taiwan Bar Association, Taipei Bar Association and more than 400 lawyers have signed the petitions. All of them maintain that the proposal is “unconstitutional.”
Under an unequivocally clear democratic constitutional value of a separation of powers, as found in the US and European democracies and in legal circles, it is plain to see that the push for an expansion of the legislature’s powers is unconstitutional.
Huang Di-ying is a lawyer and policy committee member in the Taiwan Nation Alliance.
Translated by Tim Smith
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