Tuesday, July 1, 2008

Return to the Constitutional Thinking behind the Control Yuan

Return to the Constitutional Thinking behind the Control Yuan
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
July 1, 2008

Wang Chien-hsuan called the Control Yuan a toothless tiger, and said he wanted to give it a set of false teeth. He said he wanted it to roar a little, in order to restore its authority. People applauded Wang Chien-hsuan's analogy. They want official wrongdoing exposed and prosecuted. But some of his proposals affect the checks and balances between the five powers of our constitutional system, and must be considered carefully.

Wang Chien-hsuan wants to restore the Control Yuan's monitoring authority. This includes impeaching high officials who implement improper policies, checking and balancing tenured officials, empowering investigative personnel, implementing an auditing system, and setting up an Independent Commission Against Corruption under the aegis of the Control Yuan. Most of his proposals do not depart significantly from the spirit of the Constitution. However his proposals for the impeachment of high officials who implement improper policies and for an Independent Commission Against Corruption may affect the Constitution, and must be considered carefully.

According to Article 97 of the Constitution, the spirit of Amendment 7 of the Constitution, and Article 6 of the Control Yuan Law, the Control Yuan may impeach central and local government officials, as well as Judicial Yuan and Examination Yuan officials. Grounds for impeachment however are limited to "dereliction of duty or violations of the law." If the official has committed a crime, he must be handed over to the courts for prosecution.

Therefore according to existing provisions, government officials may be impeached only for criminal offences or dereliction of duty. The impeachment process prosecutes crimes objectively defined as crimes by law. Wang Chien-hsuan's proposal to impeach high officials "whose policies are clearly wrong" would require reviewing the content of policy. The impeachment process would prosecute crimes subjectively defined as crimes by ideology.

Impeachment requires a motion for impeachment by the Control Yuan, followed by review by the Civil Service Disciplinary Committee. This tells us impeachment is about legal responsibility rather than political responsibility. In democratic countries, policy decisions reflect the will of the majority. The merits or demerits of policies are determined by elected representatives of the national legislature. The Control Yuan is not an government agency that reflects public opinion. It ought not concern itself with political responsibility and matters of policy. Otherwise it might become a "Super Executive Yuan" or a "Super Legislative Yuan."

Following the Fourth Constitutional Amendment in 1997, the Republic of China leaned toward a semi-presidential system. The Executive Yuan remained the country's highest executive authority. But because the Premier is appointed by the President, he tends to carry out the President's wishes. Meanwhile, the Executive Yuan must answer to the Legislative Yuan. The Legislative Yuan has the authority to subpoena witnesses, veto bills, cast votes of no confidence, review the budget, and check and balance the Executive Yuan. In other words, at the policy level, the Executive Yuan is effectively saddled with two bosses, the President and the Legislative Yuan.

If the Control Yuan is permitted to impeach high officials for implementing inappropriate policies, it will become a third boss of the Executive Yuan, and may provoke a constitutional crisis. If the President and the Legislative Yuan have differences of opinion regarding policy, they can resolve any such differences by means of no confidence votes, or by dissolving the parliament. But if the Control Yuan and the Legislative Yuan have different views on policy, they have no mechanism to break the deadlock. The Executive Yuan will be directionless and lost.

Nor is the establishment of an Independent Commission Against Corruption under the aegis of the Control Yuan a simple matter. The Control Yuan is not an administrative body. It lacks comprehensive judicial authority. It cannot be considered a "quasi-judicial body." It is the nation's highest supervisory body. But an Independent Commission Against Corruption, with its quasi-judicial status, is different. If an Independent Commission Against Corruption becomes part of the Control Yuan, the Control Yuan and Judicial Yuan will be in competition with each other. Our nation will then have two judicial systems.

For an Independent Commission Against Corruption to operate effectively, it needs institutional independence. It must sever its relations with all other organs. It must use a three pronged approach, including enforcement, prevention, and education, to control corruption. The Control Yuan requires independence to achieve the same purpose. But however similar their purpose, the two organizations are different in nature. They must not be confused with each other. Otherwise, any redundancy is bound to destroy the principle of the separation of powers.

Wang Chien-hsuan's determination to restore the function of the Control Yuan should be applauded. In the past the Control Yuan only went after the small fry. It let the big fish off the hook, and left the public thoroughly disillusioned. Reform can no longer be delayed. Nevertheless, in restoring the Control Yuan we must pay attention to two points. One is that the powers of the five branches of government must remain balanced. The other is that the powers of the Control Yuan, Legislative Yuan, and Judicial Yuan must remain separate. Restoring the Control Yuan's authority requires that we think in terms of constitutional law.

President Ma and Wang Chien-hsuan both want to restore the Control Yuan. They agree it must be independent. But apparently they have not reached an agreement on how it ought to be restored. President Ma stresses "compliance with the constitution" and "enforcement of the constitution." This is basic to any democratic country. When Wang Chien-hsuan attempts to restore the functions of the Control Yuan, this is what he must avoid inadvertently disrupting.

2008.07.01 03:01 am












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