Saturday, September 29, 2007

Grand Justices must be Defenders of the Republic of China Constitution

Grand Justices must be Defenders of the Republic of China Constitution
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
September 28, 2007

The Legislative Yuan yesterday exercised its power to approve the president's choices for the Vice President of the Judicial Yuan and eight Grand Justices. Each of the nominees was voted up or down individually, on a "one man, one vote" basis. The result was the Vice President of the Judicial Yuan and four Grand Justices were approved, but four other nominees for Grand Justice were not.

The Council of Grand Justices has 15 members, eight of whose terms overlap the terms of the other seven. Beginning in 2003, eight members began serving four year terms. The other seven began serving eight year terms. When the four year terms of the eight members expire, their replacements will serve eight year terms. Henceforth every four years, half the members (i.e., eight or seven) of the Council of Grand Justices will be replaced. The current personnel replacement is the first of its kind. The system was designed to prevent any single president from nominating the entire Council of Grand Justices. But in fact Chen Shui-bian nominated the first 15 members. And he is now nominating the first eight replacements. Chen Shui-bian is highly controversial. His legitimacy is in serious question. Therefore the nomination and approval process for the Grand Justices, and how they interpret the constitution once they are seated on the bench, will inevitably provoke widespread debate and intense controversy.

The Grand Justices must be Defenders of the Republic of China Constitution. From their lofty perches, the Grand Justices must have a farsighted, visionary understanding of the requirements of Constitutional Republicanism. The Grand Justices must have the moral courage to implement the letter and spirit of the nation's basic law. Otherwise they don't deserve their exalted status. The current Council of Grand Justices has left the public deeply disillusioned. Their interpretations of the constitution reflect surrender to political expedience and obedience to political authority.

Consider the following three interpretations of the constitution: 1. The 319 Truth Commission Case, 2. The National Communications Commission (NCC) Case, and 3. The State Affairs Confidential Expense Case. The 319 Shooting Incident cast serious doubt on the legitimacy of Chen Shui-bian's second term in office. The case was assigned to ordinary law enforcement agencies, including the National Security Bureau, local police, investigators, and prosecutors. Because those suspected of a crime were entrusted to investigate the crime, the public found it impossible to lend any credence to the process. Every day the case remained uninvestigated, was another day Chen Shui-bian remained under suspicion. Obviously this undermined both the legitimacy of his regime and its ability to govern. A special investigative agency established by the Legislature, consisting of both ruling and opposition party members, was the only feasible solution, the only one that stood a chance of gaining the public's trust. But the DPP chose to stonewall, invoking a non-existent and ludicrous "administrative right of resistance." After which it demanded a constitutional interpretation. Grand Justices telephoned legislators attempting to exert undue pressure on them. They even attempted to nullify the constitutionally delegated investigative powers of the Legislature, in order to squelch the Truth Commission. The Grand Justices intended to give Chen Shui-bian a helping hand. In fact they merely guaranteed that Chen Shui-bian would never regain any political legitimacy. That his regime would spin its wheels for the next several years, to the detriment of the nation, and even to the detriment of Chen himself. This is mere one example of the Grand Justices' pusillanimity and myopia under the pressures of realpolitik.

The composition of the NCC is determined differently from other institutions. The reason is governments in recent years have refused to govern in accordance with law. Instead they have manipulated administrative agencies in accordance to their private whims. The opposition parties could no longer allow the Executive Yuan to monopolize the nomination process. They demanded a role for the legislature in determining the composition of the NCC. Given today's political reality, such demands are eminently reasonable. The Executive Yuan, through the Central Election Commission, illegally linked "referenda," more accurately referred to as "plebiscites," with the 2003 presidential election. Yet the Grand Justices turned a blind eye to this unconstitutional behavior. They refused to acknowledge the need for an independent NCC. They hid behind the pretense of "maintaining the separation of powers." They denied the right of the Legislative Yuan to participate in the process. This is how the Grand Justices rationalize their behavior.

The Grand Justices did not prevent the courts from trying suspects in the State Affairs Confidential Expense Case. What the Grand Justices did instead, was invent a "Executive Secrets Privilege," and special evidence and evidentiary procedures, providing Chen Shui-bian with a convenient escape clause. They enabled Chen to use secrecy laws to make all evidence and court records that could convict him unavailable, permanently, in perpetuity, thereby achieving the goal of preventing the case from going to trial. The Grand Justices' "interpretation" of law was tantamount to "making" of law. They were "legislating from the bench." They were willing to be used by Chen Shui-bian. They were eager to be used by Chen Shui-bian. This is a clear illustration of how the Grand Justices' behavior has undermined justice in the State Affairs Confidential Expense Case.

The nominees for the next Council of Grand Justices are mired in controversy. The newly approved Grand Justices will be interpreting the constitution at least until the current president's four years term of office expires. In other words, Grand Justices whom Chen Shui-bian nominated, will interpret the constitution under the next president. The people only can hope that Chen Shui-bian's constitutional abuses will not spread to future Grand Justices, and undermine the future of constitutional government.

2007.09.28 03:23 am








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