Is the Republic of China's Democracy Regressing?

Is the Republic of China's Democracy Regressing?
China Times editorial (Taipei, Taiwan, ROC)
A Translation
January 30, 2008

As we approach the presidential election, the Democratic Progressive Party has been warning people that if the DPP loses the presidential election on the heels of the legislative election, the Republic of China will return to a one-party state, and that the ROC's democracy may regress. DPP legislators are also demanding a constitutional interpretation. They are challenging the constitutionality of the single member district electoral system, claiming that it violates the principle that "all votes should be equal." Chen Shui-bian meanwhile has rejected the Chang Chun-hsiung cabinet's resignation. He has made clear all personnel are to remain put. Faced with so many uncertain political developments, and knowing that democracy must not regress, we have made the following observations.

First of all, for a single political party to win a stable majority in the legislature, win the presidential election, gaining control over both the executive and legislative branches, is entirely consistent with the requirements of democracy. It is not a regressive step, as long as it is the people's free choice, as expressed by their votes. In every presidential, semi-presidential, or dual-leadership system in the world, a single political party often gains control of both the legislative and executive branches following an election. This is hardly something to be alarmed about. In every cabinet system state in the world, the party that wins a stable majority in the parliament automatically gains control of both the legislative and executive branches. This is the democratic norm. On the contrary, it is divided government that is abnormal. It is abnormal for a party that has won a majority in the legislative and presidential elections to be relegated to the status of an opposition party for eight years. For democracy to advance from abnormal to normal can only be described as progress, not regress.

Eight years ago, the KMT lost the presidential election, but retained a majority in the Legislative Yuan. The KMT handed over executive power to president elect Chen Shui-bian, who mocked the legislature as representatives of the "old mandate." Chen proclaimed that he was the representative of a "new mandate," despite the fact that he received merely 39% of the votes. Times have changed. Now the president would appear to be the representative of the "old mandate." Yet when confronting the legislature, which represents a new mandate, he denounces it as a setback for democracy. Does this wash? Only voters who vote for the DPP represent the people. Voters who vote for rival political parties do not represent the people. What is truly regressive is the DPP's anti-democratic attitude.

Secondly, as they approach the end of their terms, DPP legislators have filed a challenge to the constitutionality of the single member district electoral system. Is this progressive, or regressive? Never mind that the new electoral system was something the DPP demanded, a key plank in its policy platform. Never mind that it required a constitutional amendment, one that the DPP rammed through the legislature by holding a hunger strike. The DPP is now doing an about face. It is now denouncing its own system for unfairness based on the outcome of the election. Forget the DPP's contempt for the democratic process. How about its utter lack of sportsmanship? Their constitutional challenge alleges that the single member district electoral system violates the constitutional principle that "all votes should be equal." But the single member district electoral system was subjected to the referendum process. It was the result of a constitutional amendment. How can one demand that a written provision already part of a constitutional amendment be declared unconstitutional? The single member district electoral system has been applied to the administrative districts of municipalities and counties, all in accordance with constitutional requirements. How can these be considered unconstitutional? Is the DPP trying to tell us that single member district electoral systems are unconstitutional per se? This is unheard of. We have no desire to get too exercised over the fact that such unheard of constitutional challenges will be presented to the Grand Justices. What worries us is the anti-democratic attitude behind the DPP's refusal to admit defeat. It is akin to the host of a tournament complaining that the home team lost because the host's ground rules were unfair. To refuse to accept the outcome of a game merely because one lost is hardly a democratic and progressive attitude.

Thirdly, the requirement that the Chang Chun-hsiung cabinet resign at the end of the legislative term is not mere convention. It is a clear cut requirement imposed by the Grand Justices during a previous constitutional interpretation (Interpretation 387). The Chang Chun-hsiung cabinet submitted its joint resignation. What right does the president have to decide that the Grand Justices' interpretation of the constitution no longer applies? Can a president wilfully ignore the Grand Justices' interpretation of the constitution? Why did President Chen retain the cabinet by rejecting its joint resignation? The Grand Justices have already explained that the resignation of a cabinet at the end of a legislative term is a "compulsory resignation." The cabinet must resign. It has no choice. Nor can the president refuse to accept its resignation. (Interpretations 387, 419) If on the other hand, the cabinet resigns during the president's term of office, its resignation is a "courtesy resignation." (Interpretation 419). In other words, it can either resign or not resign. For Chen Shui-bian to reject the cabinet's resignation is contrary to constitutional intent. His hidden agenda is to retain the cabinet. If Hsieh is elected president, the cabinet will stage a showdown with the legislature. It will respond only to the president. It will refuse to respond to the legislature. If Ma Ying-jeou is elected president, the cabinet can then refuse to submit courtesy resignations. Since the Grand Justices have said they have no obligation to resign in such a case, the cabinet will refuse to resign and refuse to hand over executive power. If the legislature attempts to bring down the cabinet via a vote of no-confidence, the Executive Yuan will demand a constitutional interpretation. The DPP will allege that the electoral system for the legislative elections is unconstitutional. It has already filed an appeal for a constitutional interpretation, alleging that the legislature has no legitimacy. If the ruling regime's overall strategy is to selectively twist the meaning of the constitution, and to refuse to hand over power when defeated at the polls, that can hardly be termed democratic and progressive.

The ruling DPP is displaying utter contempt for the new public mandate. It is demanding constitutional interpretations to negate the results of the parliamentary elections. It is resorting to unconstitutional means to reject the cabinet resignation. It is attempting to leave open the possibility of refusing to hand over political power in the event of a debacle in the presidential election. We have good reason to worry that the Republic of China's system of constitutional government is on the verge of regression. The ruling DPP may well attempt to split asunder a duly elected government by such unconstitutional and underhanded means. Let us hope are fears are unfounded.

台灣的民主是否進入退步期？
中國時報 2008.01.30　

　民進黨面對即將到來的總統選戰，不斷提醒國人，如果總統選舉民進黨再度敗選，台灣將要恢復一黨獨大的狀態，並警告台灣的民主恐將進入退步期；另一方面民進黨立委也預備提案聲請釋憲，挑戰單一選區制度違反憲法上「票票等值」原則，陳水扁總統則同時退回張俊雄內閣總辭，以張內閣原班人馬留任。面對充滿變數的政治發展，思考台灣的民主不能退步，在這有以下諸點觀察。

　首先，單一政黨獲得勝選並掌握國會穩定多數，甚至進而贏得總統選舉同時掌握行政與立法兩權，只要是出自人民透過選票的自由選擇，就符合民主要求，不是民主的倒退。世界上所有的總統制、半總統制或雙首長制國家，經常出現單一政黨先後在總統與國會大選中獲勝同時掌握立法與行政兩權的現象，並不值得大驚小怪；世界上所有的內閣制國家，贏得國會穩定多數的政黨，都必然同時掌握立法權與行政權，這一向就是民主政治的常態。反而是台灣過去在國會及總統選舉中難得取得超過半數以上選票的政黨，以少數政府的行政權與國會的立法權對抗八年之久，才是異態。民主從異態進入常態，只能說是進步，不能說是退步。

　八年前，國民黨輸了總統大選，仍在立法院中掌握多數，國民黨交出了政權，當時得票不滿四成的陳水扁總統以代表新民意自居，譏諷國會是舊民意的象徵。現在時移勢易，總統似乎該被視為舊民意的代表了，面對新民意的國會，卻質疑為民主退步的現象，說得過去嗎？只認為支持自己的是人民，不承認投票給對手政黨的多數是人民，這種民主素養，才是退步！

　第二，民進黨立委們在任期終了前夕，聯手提案聲請大法官釋憲，挑戰單一選區選舉制度違憲，這是民主的進步還是退步呢？且不說新選制曾經是民進黨堅持的政見主張，是民進黨人不惜用絕食換來的修憲成果，現在反口要用制度不公為由挑戰敗選的結局，缺乏民主政治裡的運動家精神。聲請釋憲的基調是說單一選制違反「票票等值」的憲法原則，可是單一選制是立院提案經過複決完成修憲程序後，已寫成憲法增修條文的規定，是要釋憲者說修憲違憲嗎？單一選區跟著直轄市與縣市的行政區域劃分而走，也是憲法增修條文的要求，怎會構成違憲呢？難道單一選區制度是修憲不能逾越的界線？似是聞所未聞的主張。我們並不想擔心聞所未聞的憲法主張交給大法官解釋，但對於隱藏在主張背後不肯認輸的反民主態度，深感應該提高警覺。好像主辦球賽地主隊在輸球後說是主辦單位公布的球賽規則不公；敗了想要否定賽制來否定比賽結果，絕對不是民主進步的表現。

　第三、張俊雄內閣在立委任期屆滿時總辭，可不是憲政慣例而已，而是大法官曾為憲法解釋（釋三八七）的明白要求。張俊雄內閣據之提出總辭，總統憑什麼自行認定大法官的憲法解釋業已失效？總統應該任意忽視或否定大法官的憲法解釋嗎？那麼陳總統為何用退回總辭案的方式留任內閣呢？大法官曾經解釋過，內閣跟著立委改選辭職，是「義務性辭職」，也就是非辭不可，總統不能拒絕（釋三八七、四一九）；內閣若是在總統上任時辭職，則是「禮貌性辭職」（釋四一九），也就是可辭可不辭。陳水扁退回內閣總辭，是違反憲法解釋意旨的動作，其背後的玄機可能在於保留張內閣在任，謝長廷選上總統，內閣就正式向國會攤牌，只對總統負責，不對國會負責；馬英九選上總統，張內閣則可拒為禮貌性辭職，因為大法官說過並無辭職的義務，所以內閣拒絕辭職交出政權。屆時若國會要以不信任投票倒閣，行政院還可說國會選制違憲，已經聲請釋憲，國會並無正當性。執政者總的策略，如果就是選擇性的玩弄憲法文字，拒絕在敗選時交出政權，絕非民主進步。

　如果可以無視最新展現的多數民意，利用聲請釋憲埋藏否定國會選舉結果，再以違憲的手法退回內閣總辭案，預留總統大選敗選時拒不交出政權的可能性，我們就有理由擔心，台灣的民主正在進入退步期，而且可能因此裂解民選政府正當性的手段，但願我們只是杞人憂天！