Chou Chan-chun's Misreading of Presidential Authority

Chou Chan-chun's Misreading of Presidential Authority
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
November 11, 2010

Chou Chan-chun's ruling on the Second Financial Reform scandal has provoked a debate over presidential authority. This is a serious problem with the constitution in its current state. Society can take advantage of the controversy to take a long, hard look at the issue.

In 1997, the fourth amending of the constitution redistributed the powers and duties of the central government. Hindsight shows that the real motive behind Lee Teng-hui and the DPP's repeated amending of the constitution, was to destroy the Republic of China Constitution. This newspaper ran 58 consecutive editorials addressing the constitutional amendment issue. The heading of the series was "Amend the Constitution. Do Not Destroy the Constitution."

At the time this newspaper suggested that since the president was already directly elected, his authority should be increased. But an official's responsibility must be commensurate with his authority. Therefore if the president's authority is increased, so must his responsibilities. A president whose authority has been increased must be elected by an absolute majority. He may no longer be elected by a relative majority. Also, the executive power must be centralized. It may not be divided.

This conspiracy between Lee Teng-hui and the DPP had several consequences. First, President Lee Teng-hui wanted to upgrade the National Security Council, transforming it into a decision-making body. He wanted to make the Premier the Deputy Chairman of the National Security Council, i.e, subordinate to the Chairman of the National Security Council. He wanted to demote the Premier to the level of a National Security Council staff member, to make him its enforcer. This proposal ran aground due to opposition from the Democratic Progressive Party. Secondly, the Legislative Yuan had the right to approve the president's appointments for the premiership. Lee wanted this right repealed. On this, he got what he wanted. Thirdly, he wanted a relative majority threshold for presidential elections. In other words, Lee's goal of replacing the Executive Yuan with the National Security Council was not implemented. Lee's goal of upgrading the National Security Council was not implemented. But the nature of the premiership was changed. The constitution became a semi-finished product. The distribution of central government powers and duties were no longer clear. This newspaper ran a headline that read, "The President under the New Constitution: A Surplus of Political Turmoil, A Shortage of Constitutional Authority."

The new constitution has numerous problems. First, the president can appoint or remove the premier at will. As a result, in law and in fact, the president wields a monopoly over executive power. Secondly, the constitutional source of the president's authority is no longer clear. In 1998, in an attempt to "cite the law instead of the constitution," Lee Teng-hui promoted the "National Security Council Organization Law." He attempted to restructure the National Security Council, transforming it into a decision-making body. He attempted to incorporate it into the Executive Yuan. He did not succeed. He attempted to inject it into the constitution during a fourth amendment bid, but this also failed. Lee Teng-hui has long insisted that the president has authority over "national defense, foreign affairs, cross-strait affairs" and other "fundamental policies." In fact, his claim has no constitutional or legal basis whatsoever. This newspaper referred to it as a "Verbal Instructions Constitution." In 2003, the Chen administration amended the law. It wrote the "Three National Security Powers" into the "National Security Council Organization Act." But questions remain. First, this is still a case of "citing the law instead of the constitution." It still lacks legitimacy. Secondly, dividing executive power into the "president's three National Security powers," and "other administrative powers," is neither reasonable nor feasible. Thirdly, the law can proclaim that the president has "three National Security powers." But the National Security Council remains a non-decision-making body. Fundamentally speaking it has no right to implement these "three powers."

For example, in the real world constitutional framework "cross-Strait economic and trade affairs" are simultaneously "cross-Strait affairs" and "economic affairs." They are indivisible. How can one claim that the president has authority over "cross-Strait affairs" but not "economic affairs?" Another example is military procurement. That is simultaneously a "national defense issue" and a "fiscal issue." How can one claim that the president has authority over "national defense issues," but not over "fiscal issues?" Therefore if one claims that the president has "three national security powers," then factually and legally the president can intervene in all matters of national policy.

The only channel through which the president can intervene in the authority of the executive is through the Executive Yuan. The president can appoint or remove the premier. This is how the president can control the Executive Yuan, in law and in fact. Actually, the president need not be a member of the majority party. Chen Shui-bian headed a minority government for eight years. Under these conditions the president ought to be able to appoint a member of the majority party as premier. This would establish a legal precedent for "system of alternate executive power." The nomination of the premier is a presidential power. It is also a presidential responsibility. But during Chen Shui-bian's eight years in power, he insisted on minority government. He appointed and replaced six premiers. The Second Financial Reform scandal in particular, revealed the extent of his presidential powers. Lee Yung-san, Lin Chuan and other cabinet members have admitted that they acted on orders from the president. Such examples may not constitute legal precedents. But neither can one close one's eyes to them. One cannot ignore one's conscience. Legally and factually, these are not powers belonging to the president under the constitution in its current state.

Chou Chan-chun's behavior is contemptible. He argued that airport trollies were "not part of the president's official duties." He mocked Ma Ying-jeou for "exceeding his authority." But Chou Chan-chun refused to say that coping with Typhoon Morakot and the financial tsunami "was not the president's responsibility." He refused to say that Ma Ying-jeou was merely a figurehead, and not responsible for Typhoon Morakot and the financial tsunami. Chou Chan-chun portrayed Chen Shui-bian as a "figurehead leader." He absolved Chen of all responsibility for wrongdoing during his eight years in office. He even argued that Chen Shui-bian lacked the authority to promote the Second Financial Reform program. He "reasoned" that since Chen lacked the authority to intervene in financial reform, therefore he lacked the wherewithal to extort wealth. What is this, but arrant nonsense?

Ma Ying-jeou would like to "retreat to the second line," but given the current state of the constitution, he cannot. By contrast, Chen Shui-bian insisted that the constitution was "moving toward a presidential system with a dual leaderhip system." As a result, every move went his way. The constitutional framework was no longer clear. The system of constitutional rule was now riddled with loopholes. The constitution was now mute. Chen Shui-bian lacked the authority to intervene in financial reform. But he took advantage of the fact that he could fire the premier at will. The constitution no longer constrains such "independent" trial judges as Chou Chan-chun. It no longer prevents them from betraying their professional consciences.

與周占春論總統職權
【聯合報╱社論】
2010.11.11

周占春對二次金改案的判決，引發「總統職權」的爭議；這是現今憲政上的嚴重問題，正可藉社會視聽關注之際作一檢視。

民國八十六年的第四次修憲涉及中樞憲政權責的改制，事前即顯露李登輝與民進黨合謀的修憲方案將毀掉這部憲法。當時，本報以連續五十八篇系列社論析論修憲議題，系列的總標題是：《修憲，不可毀憲》。

當年本報的主張是：總統既已直選，即應增加總統的權力；總統既增加權力，即應有權責相副的機制；且權力增大的總統，須採「絕對多數」選制，不可採「相對多數制」；而行政權必須一元化，不可切割。

李登輝與民進黨合謀的修憲結果是：一、李登輝欲將總統主持的國家安全會議提升為決策機關，將行政院長定為國安會副主席（國安會主席的部屬），並將行政院作為國安會的幕僚及執行機關。此議因民進黨反對而擱淺。二、取銷立法院對行政院長任命之同意權。此案通過。三、總統選舉採相對多數制。也就是說，李登輝原想以國安會取代行政院的構想未實現，以致國安會升格未成，但行政院長的性質已變。這個「半成品」的修憲成果，致使中樞權責機制不明，本報當年的評論標題是：〈新憲的總統：掀起政潮有餘，權力根據不足！〉

新憲的問題在於：一、總統可以逕自任免行政院長，使總統在法理及事實上皆操控了行政權。二、但總統的權力根據卻無明確法源。李登輝於八十二年修訂《國安會組織法》，即想用「以法代憲」的方式，將國安會改制為前述決策機構，以收編行政院，但未得逞。其後，又欲在第四次修憲時將之入憲，亦告失敗。因此，李登輝始終自稱，總統擁有決定「國防、外交、兩岸」等「大政方針」之權，根本全無憲法或法律之憑據，本報指其為「口諭憲法」。直至民國九十二年扁政府始通過修法，將「國安三權」寫入《國安會組織法》。但問題仍在：一、這仍是「以法代憲」，正當性不足。二、將行政權切分為「總統國安三權」，及「其他行政權」，不合理，亦不可行。三、總統雖在法條上具「國安三權」，但國安會仍非決策機關，且根本沒有執行「三權」的機關配置。

例如，在實際憲政運作上，關於兩岸經貿政務，是「兩岸加經濟」，若承認總統有「兩岸權」，卻無「經濟權」，如何合理？再如軍事採購，是「國防加財政」，若承認總統有「國防權」，卻無「財政權」，如何可行？因而，若承認總統有「國安三權」，則在法理及事實上即不能排除總統介入總體國政。

總統介入行政權的唯一管道即是行政院，而總統可以全權任免行政院長，則是總統操縱行政院的法理及事實憑據。其實，倘若總統不是國會多數黨（如扁政府八年「朝小野大」），總統應可任命多數黨支持的閣揆，以形成「行政權換軌制」的法例；因為，閣揆提名權非但是總統的「權力」，也是總統的憲政「責任」。但是，陳水扁八年任期，皆堅持「少數政府」，並六易閣揆；在二次金改案中，尤可見其對總統權力的專擅，而他的權力又被閣揆及李庸三、林全等閣員承認並受命行事。這種現象，即使未必能說其權力出自列舉主義的法源，但也不可能閉著眼睛、昧著良心說，這在法理及事實上絕非總統在現行憲制上必然衍生的「職權」。

周占春的無恥可惡，在他只舉機場手推車「非總統職權」，以此譏諷馬英九「逾越」；但周占春卻不敢說，八八水災與金融風暴亦非「總統職權」，所以馬英九這個「虛位元首」不應負責。周占春正是將陳水扁塑造成幾近一名「虛位元首」，簡直開脫了他八年主政興風作浪的一切責任；甚至認為，陳水扁連藉勢藉端假二次金改貪汙的「資格」都沒有（你無權管金改，所以沒資格貪汙），這不是胡說八道是什麼？

現行憲制，馬英九欲「退居第二線」而不可得；相對而言，陳水扁堅持「傾向總統制的雙首長制」，則是無往而不利。憲法的規範不明，憲政的隙漏極大。憲法不能說，陳水扁透過任免行政院長絕無介入二次金改的「職權」；憲法也不能規範像周占春這種「獨立審判」的法官不可喪盡專業、天良泯滅！