Sat, Sep 14, 2013 page3

• MA-WANG SHOWDOWN: Independent legislature key to democracy: legal expert

  ACADEMIC PERSPECTIVE: A law professor said the notion that legislators-at-large are dependent upon their parties, not voters, for their positions was not correct

  • By Chen Hui-ping and Jake Chung / Staff reporter, with staff writer
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  A National Taiwan University College of Law professor yesterday told the Chinese-language Liberty Times that it was necessary for the Council of Grand Justices to clarify its Interpretation No. 331, which covers legislators-at-large.

  The interpretation, made in 1983, said that legislators-at-large would lose their seat if they were to lose their political party membership.

  In an interview, Yen Chueh-an (顏厥安) said legal experts had criticized the interpretation because it meant party charters overruled public will, which was against the system’s original intention, Yen said.

  The nation’s legislator-at-large system had its antecedents in the German proportional representation system, but in Germany the councilor seats are protected, Yen said.

  If a situation like similar to the Chinese Nationalist Party (KMT) revoking Legislator Speaker Wang Jin-pyng’s (王金平) membership were to occur in Germany, the lawmaker would retain his legislator status, but would be unaffiliated with any political party, he said.

  Though many hold the notion that legislators-at-large are largely reliant on the political parties for their votes — and therefore did not receive direct support from the voters — this was an false notion because voters also take party ballots into consideration when voting, the professor said.

  The 34 legislators-at-large are elected through political party ballots cast by voters when voting for the constituent legislators. Based on the proportional representation system, political parties are accorded a certain number of seats in based on the number of party ballots they received, seats that they would then fill from an agreed-upon list of legislators.

  However, a political party must receive more than 5 percent of political party votes to be eligible for legislators-at-large seats.

  Legislators-at-large are voted into office and fully backed by the people, just as legislators representing other constituencies, Yen said, adding that they should all be under the protection of the Constitution and as such, any removal of legislators from their office should be done through the proper channels and executed from within the Legislative Yuan.

  Under the Organic Law of the Legislative Yuan (立法院組織法) and Article 66 of the Constitution, the legislators are tasked with the nomination and ratification of the legislative speaker and deputy speaker, Yen said.

  The speaker cannot be removed from office because he or she had overstepped or violated part of their party’s charter, Yen said.

  The lawmakers themselves should be the ones to make such a suggestion, or it would seem that the party charter rules supersede the Constitution, he said.

  President Ma Ying-jeou’s (馬英九) actions toward Wang Jin-pyng (王金平) show that he is confused about his dual roles as president of the nation and the chairman of the KMT, Yen said.

  Ma’s appearing at a press conference on Sunday at the Presidential Office with Vice President Wu Den-yih (吳敦義) and Premier Jiang Yi-huah (江宜樺) to discuss a KMT internal matter was a severe violation of the separation of powers principle, Yen said.

  It was a move that could destroy the fundamental values of the democratic system, Yen said, questioning if the nation was returning to the “political tutelage” era.

  Sun Yat-sen (孫逸仙) had planned for the KMT to rebuild China into a modern nation through three separate phases — the military-rule phase in which the KMT purged the nation of warlords, the political tutelage phase where the KMT began the introduction of a provisional constitution and conditioning the nation to the republic system of government, and the final phase where the nation was to be governed under a functional constitution, Yen said.

  The first step toward democratization for Taiwan was the general election of legislators in 1991, he said.

  Although the Legislative Yuan was not without its faults, it is still the most important bastion of democracy in Taiwan, just as congressional bodies across the world are the bulwark of their respective nations’ democracies, he said.

  If we cannot even maintain the independence of the legislative body, it would be a regression of democracy in Taiwan, Yen said.

  Yen pointed out that the grand justice’s interpretations were not set in stone and could be amended or overruled entirely.

  He said that in drafting Interpretation No. 261, which was issued in 1981, the grand justices noted that they were overruling Interpretation No. 31.

  There is still room for amendments for the grand justice’s Interpretation No. 331, and the legislature should appeal to the council for a clarification, he said.
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