Will the Southern Front Disappear into 57 Document Shredders?

Will the Southern Front Disappear into 57 Document Shredders?
United Daily News Editorial (Taipei, Taiwan, ROC)
A Translation
April 24, 2008

President-elect Ma Ying-jeou will soon be inaugurated. Now in its final days, the outgoing Chen Shui-bian regime is implementing a "Scorched Earth Policy," deliberately leaving a mess for Ma to clean up. The mess includes artificially-low gasoline prices, the Suhua Highway, the Taiwan Goals arms procurement scandal, and the Sunny Bank scandal. The Presidential Office is even rumoured to have purchased 57 document shredders. Having learned from past mistakes, the Legislative Yuan is considering preventive legislation to deal with the transfer of presidential and vice presidential authority.

In fact every aspect of the handover, including those relating to personnel, budgets, policies, and confidential files, is covered by existing laws. The passage of new laws is unnecessary. The bizarre phenomenon taking place is the result of the outgoing Chen regime's refusal to obey the law. It is not the result of inadequate laws. If the outgoing Chen regime violates the law during the handover, it must bear full legal responsibility for its actions. It must not be exempt from prosecution merely because it has already stepped down.

Political appointees come and go depending upon which party is in office. Career civil servants on the other hand are subject to the Civil Service Promotion Act. They may not be arbitarily transferred. Their promotion within the civil service is subject to certain legal standards and procedures. Candidates for promotion must meet strict standards. Candidate promotion rosters must be approved by Candidate Review Boards. If authorities violate the law, they are subject to prosecution. DPP political appointees have illegally appointed relatives and cronies to positions of power. But the punishments meted out to them have been mere slaps on the wrist. The offending officials must not escape punishment. They must pay for their offenses -- with their careers. Civil servants are protected by the law. Therefore they must avoid political controversy and refuse to obey illegal orders from their superiors. Only this can ensure the stability and integrity of the civil service system.

Budgets and policies are two sides of the same coin. The government must formulate policies and draft budgets. It must then get them approved by the Legislative Yuan. Only then can it govern. Furthermore, the Council of Grand Justices considers budgets reviewed and adopted by the Legislative Yuan as "implementations of the law." These implementations must be in accordance with the law. The Budget Act also requires that concerned agencies implement the budget according to plan, on schedule, then evaluate the situation and send their findings to the Legislative Yuan. The budget may not be spent in advance. Any agencies that illegally spend their budgets in advance must be held legally liable.

The State Secrets Protection Act and the Archives Act explicitly define civil servants responsibilities. They must protect and manage official documents when they are transferred to another office, or resign from office. If they deliberately destroy official documents, or fail to destroy them in accordance with proper procedure, they may be criminally liable. The rumour that the Presidential Office has ordered 57 document shredders may be true or false. But if a future review of document numbers reveals files missing for no reason, those responsible will be criminally liable. Chen Shui-bian says his Confidential State Affairs Expenses funded a top secret "Southern Front." Chen Shui-bian says that the archiving of "Southern Front" documents met with the approval of the Council of Grand Justices. If so, the documents are subject to the terms of the aforementioned State Secrets Protection Act and Archives Act. If so, Chen Shui-bian is legally obligated to turn them over to his successor, intact. If they are destroyed, Chen may be criminally liable.

Therefore all aspects of the handover process are subject to legal constraints. The only question is whether the outgoing regime is obeying the law. If the new administration is guilty of illegal activity after taking office, it must be prosecuted to the fullest extent of the law, especially during the transition period. If it is found guilty of fraud or dereliction of duty, if it illegally bestows favors upon certain parties, or accepts kickbacks, it is guilty of corruption. Prosecutors may then prosecute those involved according to the law.

If the Legislature passes special legislation purely in response to the presidential election and the handover of authority, the constitutionality of this legislation may be challenged. Before the constitution was amended, depriving the legislature the right to approve the president's nominees for Premier, the Council of Grand Justices offered constitutional interpretations 387 and 419. They stressed that the Executive Yuan must answer to the Legislative Yuan. The Executive Yuan is obligated to resign en masse. Following a presidential election however, the Premier's resignation is merely a courtesy resignation. It is merely a method of coping with a political issue, rather than a solution for a constitutional issue. The Grand Justices failed to express an opinion after constitutional amendments deprived the Legislative Yuan of the right to approve the President's choices for Premier. In other words, the transfer of authority should have occurred after the Legislative Elections, not after the Presidential Election. Reckless and ill-considered constitutional amendments have created chaos. If the Legislature passes special legislation specifically in response to the Presidential Election, in response to the transfer of authority, they may add to the confusion, and further tilt the system toward a presidential system.

南線專案會消失在五十七台碎紙機中？
【聯合報╱社論】
2008.04.24 02:58 am

總統當選人馬英九就職之前，陳水扁政權使出「三光政策」，又有油價擺爛，蘇花高突然轉向，及鐽震案、陽信案等不可思議的舉動，甚至傳出總統府添購了五十七台碎紙機。懲前毖後，立法院為此正就總統副總統交接問題制定專法，以為防制。

其實，政府交接的各方面，包括人事、預算、政策以及檔案機密，現行法律皆有規範，實無必要再立什麼專法。現今政府交接之際發生的種種怪現象，皆是現政府不守法的問題，而非法未規範。現政府若在移交時發生差錯，當然須負起法律責任，不會因為下台即了事。

以人事問題而言，政務官隨政黨進退固不待言；常任文官則受「公務人員陞遷法」的規範，不容任意調遷。依該法規定，文官的陞遷有一定的標準和程序，各機關皆須依法定標準編造順序名冊，送審議委員會評定；如辦理人員有違法行為須受懲處。民進黨政務官違法安插親信，懲處於他無關痛癢；但配合辦理的公務員則逃不過懲處，不可賠上自己的前途。文官依法受保障，本來就應避開政治爭議，並拒絕上級的違法命令；亦唯有如此，方能建立政府穩定健全的文官系統。

預算及政策則為一體之兩面。實際運作上，須由政府制定政策，編列預算，再經立法院同意，方得據以執行；且經立法院審議通過的預算，大法官會議認定為「措施性法律」，亦須依法執行。預算法並規定：各機關預算須按計畫和進度實施，並將實際狀況逐級考核送立法院備查，不得提前支用。因此，若確有將預算提前花光的行為，就是違法，應負法律責任。

至於政府檔案機密部分，國家機密保護法及檔案法都有明文規範公務人員於移交、離職時，保護、保管以便完整移交的義務；如有故意銷毀或不依程序銷毀的行為，均須負刑事責任。因此，所謂五十七台碎紙機的傳聞，不論真假，只要將來就文號查對，發現無故失蹤情形，則現今行事者都要負刑事責任。即以陳水扁國務機要費弊案涉及所謂「南線專案」的文件而言，既然陳水扁宣稱已依大法官解釋補核定文號，並向法院要求返還，則顯示已成為前述國家機密保護法及檔案法規範的對象，陳水扁必須原案移交，倘若故意銷毀，依法即須承擔刑事責任。

所以，從政府交接的各方面看來，法律均已有規範，問題只在現政府是否守法而已。倘若未來新政府就職，發現其中涉及不法，當然就要依法究辦。尤其是值此過渡期，若真的發生瀆職舞弊，如違法金援特定機構涉及圖利、購機涉及回扣等等，那更是貪瀆弊案，除了由檢察官依法偵辦，更無其他處置可言。

另外，若真的因總統改選制定交接專法，其在憲政上的意義亦須探討。因為，在修憲刪除立法院對行政院長同意權之前，大法官會議於釋字三八七、四一九號等解釋中，均一再強調行政院向立法院負責，立法院換屆改選，行政院必須總辭；總統改選，行政院長只是禮貌性辭職，如何處理則是政治問題而非憲法問題。但在修憲刪除立法院對行政院長同意權之後，大法官的解釋卻未就此問題再表立場。換言之，政府交接，本來應該是立法院改選後的議題，而非總統改選後的議題；修憲後卻變成曖昧不明。如今，若就總統改選制定交接專法，涉及前述政府換手交接範疇，等於以立法將此不明地帶確定下來，將使憲制進一步朝向總統制傾斜。