Mon, Aug 20, 2007 page3

• ANALYSIS: Academics laud constitutional interpretation

  POTENTIAL CRISIS There have been concerns voiced that a list of nominees for grand justices might experience the same problem as the list of Control Yuan nominees

  • By Shih Hsiu-chuan / Staff Reporter
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  Lauding the Council of Grand Justices' recent constitutional interpretation on the legislature's refusal to review the Control Yuan member nominees list submitted by the president, academics said yesterday that the ruling has asserted the constitutional powers of the Control Yuan and made clear to lawmakers who boycot the review that they have crossed the line.

  The Control Yuan, the nation's top watchdog empowered by the Constitution to investigate irregularities involving government employees under the nation's five-branch governmental framework, has been idle since January 2005, when the terms of its previous members expired.

  Although a list of 27 candidates nominated by President Chen Shui-bian (陳水扁) was delivered to the legislature on December 20, 2004, the pan-blue-dominated legislature has prevented the Control Yuan nominees review from being put onto the legislative agenda in the Procedure Committee

  The Council of Grand Justices last Wednesday issued Interpretation No. 632, in response to a request filed by pan-green lawmakers in 2005 asking it to rule on the constitutionality of the pan-blues' boycott in screening the nomination list.

  The interpretation said that the purpose of organs of the state created by the Constitution is to fulfill their constitutional function and that they cannot be interrupted because of a personnel reshuffle.

  If the president does not make nominations or the legislature refuses to exercise its power of approval, the Control Yuan becomes effectively dysfunctional and unable to perform its function, undermining the integration of the nation's constitutional system, which is not permitted by the Constitution, the interpretation said.

  Chang Wen-chen (張文貞), an assistant professor of law at National Taiwan University, said the interpretation is positive in that it ensures the Constitution.

  "It [the interpretation] sets up a clear baseline that the constitutional organs -- the supervisory system, the judicial branch and the independent prosecutorial system -- cannot be used as bargaining chips for political purposes," Chang said.

  Chang said the grand justices had made it clear in the interpretation that pan-blue lawmakers had transgressed the principles of checks and balances and that of the separation of power by boycotting the list in the Procedure Committee.

  Vested by the Constitution and its additional articles, the Control Yuan has the power to impeach or censure public functionaries working at the central and local levels. It may also propose corrective measures to government organs for improvement.

  The Control Yuan can also exercise its auditing powers to supervise the budget expenditures of branches of the government and handle assets disclosures by public functionaries.

  It's members can perform circuit supervisions and conduct investigations into cases referred to them from other branches of the government or ones they receive from the public. They can also take the initiative to investigate alleged illegalities within their terms of reference.

  Over the past two-and-a-half years the number of cases pending at the Control Yuan has grown to 47,191, 16,323 of which were submitted by the public and the rest referred by other branches of government, officials said.

  Some of the cases have been addressed by civil servants in accordance with measures implemented by former Control Yuan president Fredrick Chien (錢復), but a backlog of more than 24,000 cases remains because they can only be investigated by Control Yuan members, it said.

  Those cases include sales of pork products from sick and dead hogs, illegal money lending, leaks of confidential data from the military, a prosecutorial cover-up of drug trafficking and a spate of ethical problems involving judicial personnel, among others.

  Chen Chi-hua (陳志華), a professor of politics at National Taipei University, called the situation a "constitutional crisis" as neither state organs nor officials have had to take responsibility for their alleged administrative flaws since the previous Control Yuan members had stepped down.

  Officials accused of misconduct should be investigated by Control Yuan members and, if found guilty, punished by the "Commission on Disciplinary Sanctions of Public Functionaries," Chen Chi-hua said.

  It had been proved in the past that this model is effective in overseeing the performance of government agencies and public officials, he said.

  "Now, in the absence of Control Yuan members, who is taking care of the public's complaints?" he said.

  Chen In-chin (陳英鈐), an associate professor of law at National Central University, said Interpretation No. 632 "was based on a very fundamental spirit of the Constitution -- the legislature is obliged to exercise its power of consent on the president's nominations."

  Responding to the disapproval of some pan-blue lawmakers who argued that Interpretation No. 632 had encroached on "the autonomous operation of the legislature," Chen In-chin said the legislature's autonomy is not something that is immune to the Constitution.

  At the end of next month more than half of the grand justices' terms expire, and the president is expected to submit eight nominations to the legislature for these positions.

  Chen In-chin said that there have been concerns voiced by a civil watchdog that the list of nominees for grand justices might encounter the same difficulty as the list of Control Yuan nominees.

  Article 14 of the Law of Interpretation Procedures For Grand Justices (司法院大法官審理案件法) states that two-thirds of grand justices constitute a quorum and that two-thirds of those present must favor an interpretation before it can be adopted.

  Given the law, the council of grand justices will be paralyzed if pan-blue lawmakers play the same trick and boycott a review of the nominees, Chen In-chen said.

  "The interpretation will raise public awareness of the seriousness caused by the deadlock over confirming the Control Yuan nominees and thus might prevent a similar constitutional crisis from happening in the case of the grand justices," he said.
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