Chou Chan-chun's Misreading of Presidential Authority
United Daily News editorial (Taipei, Taiwan, ROC)
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 Lee wanted this right repealed.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.