Monday, May 12, 2008

A Little President -- a Big Catastrophe?

A Little President -- a Big Catastrophe?
United Daily News Editorial (Taipei, Taiwan, ROC)
A Translation
May 12, 2008

Ma Ying-jeou has been elected. The Republic of China has dodged a bullet. It has avoided a dilemma in which a "Little President" takes on a "Big Mission."

During the Legislative Yuan Elections, Yu Shyi-kun advocated "Comprehensive Rule." Frank Hsieh promised he would "create a [Pan Green] majority" by encouraging defections from the Blue camp. He said the power of the executive and the power of the legislature ought to be combined. But with the DPP's crushing defeat during the Legislative Elections, it suddenly changed its tune. We were suddenly bombarded with dire warnings about "Single Party Dominance" and proposals that the power of the executive be divided into "Presidential" and "Executive Yuan" powers.

During the Lee Teng-hui era, Taiwan endured "Single Party Dominance" and combined executive and legislative powers. During the Chen Shui-bian era, Taiwan endured "Divided Government" and separated executive and legislative powers. But neither situation was as extreme as the result of this year's Legislative Yuan Elections. During the Lee Teng-hui era, the opposition Democratic Progressive Party may have been small, but it was a rising force. During the Chen Shui-bian era, the DPP may have lacked a majority in the Legislative Yuan, but so did the opposition alliance. After the Legislative Elections however, the Pan-blue camp commanded over three-quarters of the seats in the legislature. The DPP retained a mere quarter of the seats. It lost much of its political legitimacy and has been swiftly relegated to the status of a weak opposition party. It was said that if the KMT were to win the presidency , the result would be an extreme case of "Single Party Dominance." Now that Ma Ying-jeou has been elected president, that is precisely what has happened.

This situation poses a constitutional risk. Because Frank Hsieh was not elected president, the risk is lower. During the election the Hsieh camp tried to make an issue of "Single Party Dominance," in the hope of retaining the presidency. Hsieh vowed that if elected president, he would "check and balance" Single Party Dominance. Hsieh vowed that if elected president, he would form a KMT Cabinet, but would retain the authority to make cross-strait, diplomatic, and national defense policy. He would "check and balance" the Cabinet and the Legislature. The result would have been Divided Government and Divided Policies -- divided between the Presidential Office and the Cabinet. Worse, if Hsieh was elected president by a wide margin, he could spin it as "the people's desire for checks and balances." He could refuse to allow the KMT to form a cabinet, and instead rule as a minority government. The consequences defy the imagination. Fortunately, Ma Ying-jeou was elected president, not Frank Hsieh. The people used their ballots to avoid a disastrous "Little President with a Big Mission."

This time we dodged a bullet. But the Constitution still contains booby traps, including a "Little President with Grant Checks and Balances." We don't know when a "Little President" may appear under this Constitution. But the powers and responsibilities of the President, the Executive Yuan, and the Legislative Yuan are not clearly defined. Even when the President and Premier belong to the same party, their powers remain unclear. If they belong to different parties, and the President aspires to "Presidential Powers" such as the power to determine cross-strait, foreign, and defense policy, how will he "check and balance" a cabinet and legislature belonging to a different political party?

A search of the Constitution confirms that the President has no right to check and balance the cabinet and the legislature. However, the current constitution provides no safeguards against a "Little President" resorting to "Grand Checks and Balances" or "Grand Gestures" to make trouble. Since the recent election, these have all come to pass. Future constitutional amendments must disarm these booby traps.

A previous constitutional amendment adopted direct presidential elections. This led to public expectations that the actual operations of government would be conducted by the president. But at the same time it failed to establish a sound framework for the President's exercise of powers and responsibilities. Lee Teng-hui originally wanted to upgrade the National Security Council, placing it under the authority of the president, but failed to get his way. He resorted to the "Organic Law for the National Security Council." This law allowed the President to usurp the authority to determine cross-strait, diplomatic, and national defense policy. It was a case of "Using Laws to Replace the Constitution." it was highly controversial. Moreover, after Lee Teng-hui and Chen Shui-bian, the powers of the President became greater and greater, and responsibilities fewer and fewer. The system had become a constitutional abomination. Under such a system, suppose the cabinet and legislature find it necessary to check and balance a "Little President with a Big Mission?" Imagine the constitutional disaster.

Remedial measures. The current constitution is modeled on the French Fifth Republic Constitution. Whether we will move toward a presidential system or a cabinet system remains unknown. Therefore during the constitutional amendment process we just might want to fall back on the rule of law. First, we must restore the Legislative Yuan's authority to approve nominees for the position of Premier. After the new Premier takes office, the legislature retains the right to hold a vote of non-confidence. Second, we must set up a system by which executive power can change tracks. When the president and the legislature belong to the same party, the executive power belongs to the president. When they belong to different parties, the executive power belongs to the Premier, i.e., the President of the Executive Yuan. This must include the power to determine cross-strait, diplomatic, and national defense policy. Third, we must change the presidential election system to one requiring an absolute majority. Otherwise, the emergence of a president with a mere plurality, combined with Divided Government, is a formula for constitutional disaster.

Eight constitutional amendments have already destroyed the ROC Constitution. Over the past 20 years, Lee Teng-hui and Chen Shui-bian have thoroughly destroyed both the letter and spirit of constitutional rule. How will the Ma administration interpret the constitution? We will have to wait and see. Will the Ma administration be able to restore this tattered constitution via the amendment process? We will also have to wait and see.

2008.05.12 02:44 am



在 李登輝時代,台灣經歷「一黨獨大」的「行政立法合體」;在陳水扁時代,台灣則經歷「朝小野大」的「行政立法分裂」。然而,這些經歷皆不如今年立委選舉後所 呈現的情勢那麼極端;因為,在李登輝時代,在野的民進黨雖小,卻是一個上升的勢力;在陳水扁時代,執政的民進黨在立院雖未過半,而在野聯盟亦未居絕對優 勢。但是,此次立委選舉後,泛藍在國會占逾四分之三席位,僅占四分之一席次的民進黨儼然已是一個「政治正當性」急遽耗弱的在野黨;倘若國民黨再贏得總統席 位,確會形成「一黨獨大」的極端形態。如今,馬英九當選,情勢已成。

然而,此一情勢可能形成的憲政風險,也許仍較倘若謝長廷當選總統所可 能形成者為低。謝營在選季猛攻「一黨獨大」,欲贏回「最後一席」;並稱若當選總統,將「制衡」一黨獨大。謝長廷稱,他當選總統,將由國民黨組閣;但總統擁 有「兩岸、外交、國防」之權,他將藉以「制衡」內閣及國會。倘係如此,將形成「總統府/內閣」的「分裂政府」,更將出現「總統府/內閣」的「分裂政策」。 何況,倘若謝長廷以極高票當選總統,他亦可能將選舉的勝利解讀為「人民主張制衡」,因此不願將組閣權交給國民黨,而逕組「少數政府」,那就更是不堪想像的 局面了。所幸,馬英九當選,人民用選票躲過了一場「小總統/大使命」的憲政災難。

然而,這次雖躲過了一場災難,但憲法中佈設的「小總統/ 大制衡」的陷阱仍在。因為,不知何年何月,在這部憲法下,不無可能會選出一個「小總統」。但是,這部憲法對「總統/行政院/立法院」的權責關係卻無妥適清 楚的規範,即使在「總統/閣揆」同黨時亦不清楚,何況倘若異黨,總統又欲以「總統三權」,即「兩岸/外交/國防」,來「制衡」不同黨的內閣與國會?


過 去修憲,採「總統直選」,將社會期望及憲政實際運作皆導向總統,卻未建立周全的總統權責架構。李登輝原想在憲法中將國安會提升為總統的權力機構,未果;退 而以《國安會組織法》,將所謂「兩岸、外交、國防」割給總統。這是「以法代憲」,極有爭議。何況,經李登輝至陳水扁,總統的權力愈來愈大,責任愈躲愈遠, 簡直成了一個憲政惡魔。在這樣的憲政體制下,若出現「小總統/大使命」的場景,以「制衡」內閣及國會為能事,豈不會釀成難以想像的憲政災難?

亡 羊補牢。現行憲法既是以法國第五共和為藍本,未來倘非走向「總統制/內閣制」,即不妨在修憲時參考法制的補綴方法:一、恢復立法院的閣揆任命同意權。法制 是新揆上任後,國會就其政策行使不信任投票。二、設置「行政權換軌制」。當總統與國會同黨,行政權在總統;分屬異黨,則行政權歸內閣總理(即行政院長), 且不宜將「兩岸、外交、國防」切出去。三、總統選舉制務須改為「絕對多數制」,否則倘出現一個「相對多數」且與國會異黨的「小小總統」,更難善了。


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