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.

重振監察權應在憲政脈絡中思考
【聯合報╱社論】
2008.07.01 03:01 am

王建?形容監察院像「沒有牙齒的老虎」，要研究「裝幾顆假牙」，或讓老虎「吼一下」，以重振監察權。王建?的巧喻，符合民眾對官箴整飭、摘奸發伏的期待，但有些主張涉及憲政體制的定位與五院互動的衡平，必須從慎計議。

王建?重振監察權的構想，包括彈劾不當政策的首長、制衡任期保障制度的官員、強化調查實務人員編制、落實審計制度、設置監察院廉政公署等，大多與憲法的精神相去不遠，惟關於「政策彈劾」與「廉政公署」二項，恐對憲政體制產生重大衝擊，仍應三思。

依據憲法九十七條、憲法增修條文第七條及監察法第六條的精神，監察院對中央、地方公務人員、司法院及考試院人員，可以提出彈劾；彈劾的事項則限縮在「失職或違法情事」，倘涉刑事，還得「移送法院辦理」。

因此現行體制所規範的彈劾，僅就官吏是否違法或失職做審查，追究的是法律責任，衡量標準是客觀的法律；若如王建?所言，對「顯然有問題的政策」之首長提出彈劾，這就涉及政策內容的實質審查，討論的是政治責任，審度依據則成了主觀的政治。

依法，彈劾流程要走完，不僅監察院要提出彈劾案，還得送司法院公務員懲戒委員會審議，由此更可看出彈劾性質偏向法律責任，而非政治責任。在民主國家，政策是否施行應由多數民意決定，政策的良窳優劣亦應由具有民意代表性的國會判斷，監察院如今已不具民意機關特質，恐對政策之政治責任不宜置喙，否則將成「太上行政院」或「太上立法院」。

一九九七年第四次修憲後，我國憲政體制朝半總統制方向傾斜，行政院雖為國家最高行政機關，但一方面因行政院長由總統任命，難免秉承總統意志辦事；另一方面因行政院須對立法院負責，立法院可以質詢權、覆議權、不信任案、法案預算審核權等制衡行政院。亦即，在政策層面，行政院等於有總統與立法院兩個老闆。

若監察院真能彈劾不當政策的首長，將成為行政院的第三個老闆，恐將形成憲政危機。若總統與立法院對政策見解歧異，還可以不信任案或解散國會化解爭議；但若監察院與立法院對政策看法不同，卻無機制可打破僵局，行政院將無所適從。

而監察院下設廉政公署的想法，亦非所宜。目前監察院既不是行政合議機關，也未兼有不完全的司法權，因此不能算「準司法機關」，而是國家最高監察機關；但廉政公署性質不同，具有準司法機關的性質，若廉政公署設在監察院下，將使監察院與司法院產生競合困局，我國將有兩套司法系統。

廉政公署要能有效運行，重點是在機關的獨立性，切斷與其他機關的從屬關係，以執法、預防及教育「三管齊下」，有效防治貪汙，這與監察院所需的獨立性有異曲同工之妙；但目的相近、性質迥異的兩個機關，卻不能混為一談，否則疊床架屋，勢必破壞權力分立的原則。

王建?要重振監察權的心志值得肯定，過去監察院「只拍蒼蠅、不打老虎」的形象太讓民眾失望，改革實已刻不容緩。然而，重振監察權必須注意兩點：一是五院之間的權力平衡，一是監察與立法、司法之間的權力分際。簡言之，重振監察權必須在憲政脈絡中思考。

馬總統與王建?都想發揮監察權的功能，因此對確保監察院的獨立性已取得共識；但對於如何重振監察院，兩人似乎仍未取得一致看法。馬總統強調「遵憲」、「行憲」，其實是立憲民主國家的最基本原則；王建?考慮重振監察權之時，亦要避免反而搞亂了憲政體制。