Premier Cho Jung-tai (卓榮泰) on Monday announced that he would not countersign any legislation passed by the Legislative Yuan that is unworkable or patently unconstitutional.
The opposition has condemned this as “administrative authoritarianism” and deemed it damaging to the constitutional system.
Cho’s move is provocative and an expression of constitutionalism — a defensive democratic step to prevent the separation of powers from collapsing, and to ensure that democracy and freedom in Taiwan are not eroded by freedom itself.
Defensive democracy — or militant democracy — is a theory proposed by Karl Loewenstein in 1937.
Observing the global rise of fascism at the time, Loewenstein witnessed how the Nazi Party seized power through the abuse of democratic procedures and ultimately dismantled the constitutional order of the Weimar Republic.
Therefore, he argued that democratic systems must possess a level of militarism and be built on two core pillars.
First is value constraints. Democratic systems by nature have immutable values; even democratic freedoms do not extend so far as to destroy those freedoms themselves.
On this, Constitutional Interpretation No. 499 clearly identifies core principles of the free and democratic constitutional order: democratic republicanism, popular sovereignty, the protection of fundamental rights, and the separation and balance of powers.
These principles are permanent and cannot be altered through constitutional review or dismantled through the exercise of freedom.
Second is self-defensiveness. To guard against enemies of the democratic constitutional order, a democracy could adopt preventive or restrictive measures.
For example, as is the case in Taiwan, the constitutional court can dissolve political parties that undermine constitutional democracy.
Chang Chun-mai (張君勱), one of the principal drafters of the Constitution, studied political science at the University of Berlin in the 1910s. Therefore, it has been noted in legal scholarship that the Constitution is deeply influenced by the Weimar Constitution.
To avoid a repeat of the historic tragedy of fascist parties overturning the Weimar Republic, Taiwan’s Constitution has, through seven rounds of amendments, incorporated defensive democratic institutional design elements.
Chief among them is the mechanism by which unconstitutional political parties can be disbanded.
Putting theory aside, Taiwanese must face the reality of the nation’s current constitutional crisis head on.
Since new legislators took office in February last year, a series of substantive threats have been leveled at the stability of the constitutional system, amounting to an attack on the core constitutional order.
Coordinated acts from opposition parties — including last year’s amendments to the Constitutional Court Procedure Act (憲法訴訟法) — have effectively paralyzed the Constitutional Court, leaving it unable to carry out its function as the final arbiter of constitutionality within the Legislative Yuan.
Likewise, the Control Yuan has been incapacitated by budget freezes, and the Executive Yuan has faced repeated delays in budget reviews, leaving it without the necessary funding to enforce laws.
National security policy has also been jeopardized by the opposition blocking legislation related to defense budgets.
In situations where judicial and oversight mechanisms have been disabled, the spirit of the democratic constitutional order is under threat.
If executive powers were to capitulate, and blindly cosign and promulgate all legislation passed by the legislature, it would be reduced to a subordinate arm of legislative power — and mark the disintegration of the constitutional principle of the separation of powers.
The Executive Yuan must rely on the two pillars of defensive democracy to assess whether new or amended legislation from the Legislative Yuan should ultimately be implemented.
Only in this way can it avoid being subsumed by legislative powers.
Cho’s move to substantially review the constitutionality of laws passed by the Legislative Yuan is precisely the kind of self-defensive mechanism sorely needed in the current climate. It is not an act of administrative autocracy from the executive branch: The legislature, for its part, has not been stripped of its ability to provide checks and balances, and still maintains the right to raise a vote of no confidence against the premier.
As such, Cho’s actions are well within the bounds of the constitutional framework.
When the functions of constitutional institutions are weakened through political manipulation, the premier’s initiative to embrace the principles of defensive democracy represents more than a simple exercise of constitutional authority. It is a conscious, responsible step toward protecting and upholding the democratic system.
Liou Je-wei is a teacher.
Translated by Gilda Knox Streader
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