Will the Big Mouth Clause Shut Political Appointees' Mouths?

Will the Big Mouth Clause Shut Political Appointees' Mouths?
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
December 16, 2010

The Legislative Yuan has completed its first reading of the "Big Mouth Clause," a draft law regulating the conduct of political appointees.
The law would require political appointees to step down if their verbal indiscretions adversely affect the government's policy decisions or public image. If the bill becomes law, the quiet voice inside political appointees' heads will be replaced by the stentorian voice of John Law. The inevitable result will be endless controversy.

Suppose the "Big Mouth Clause" becomes law. On the one hand, the public will expect political appointees to comport themselves with greater decorum. On the other hand, it will underscore the extent to which political appointees' words and deeds provoke criticism. The reality is that
political appointees' speaking skills could stand improvement. But the problem is, who decides whose mouth is "too big?" And suppose someone has to step down because he had a big mouth? Will we really be better off if political appointees have "no mouths?" Will we really be better off if they never express an opinion? Is such a provision really necessary? Or will it merely create more problems than it solves? This is a question worth considering.

So-called political appointees are government officials who have been appointed for political reasons, and therefore bear political responsibility. They are different from civil service administrators. Anyone qualified to be a political appointee, is in principle forward-looking and politically sensitive. If he commits a major slip of the tongue, if he is guilty of misconduct, or if he fails to accomplish his appointed task, he should resign without being asked, as an expression of political responsibility. For political appointees that is taken for granted. In fact, we have no need to await legal guidelines. Under our current system,
whenever a ruling administration feels its own political appointees have been guilty of misconduct or incompetence, it can replace them at its discretion. Suppose a political appointee trips over his own tongue and touches off a firestorm. If his superior fails to take action, or attempts to shield him, he is likely to get into trouble himself.

Officials may step down on their own initiative. Or they may be replaced by their superiors. Political appointees may be forced to step down due to a slip of the tongue. None of these eventualities pose a problem. The point is that slips of the tongue are a political matter. They can be dealt with flexibly, as a political matter. But if political matters are turned into legal matters, then they must be dealt with rigidly, as a legal matter. Those who must deal with the matter are likely to come across as rigid sticklers. For example, when Premier Wu spoke about health care he mentioned Lin Yi-shi. Because he failed to pause "one tenth of a second," between phrases, he was misunderstood. Many days passed before the matter was finally cleared up. Sports Commission Vice Chairman Chen Hsien-chung was forced to resign over the Yang Shu-chun incident.
He got himself into hot water when he said the athletes "would have to lump it." But in retrospect, why did he say what he did? If he said it in order to safeguard the rights of the Chinese Taipei team, can he really be blamed?

Besides, haven't we been touting the lifting of martial law, and the right of free speech? If the government suddenly begins controlling the speech of political appointees, people may get the impression the government is attempting to turn the clock back. No wonder some people are saying that the law is akin to the ancient practice of executing those who criticize the emperor, and signals the advent of a "white terror for political appointees." More ominously, many current political appointees were once members of the bureaucracy. They are often verbally challenged and afraid to face the public. Their ineptitude and fear often lead to poor communication and bad decision-making. If legal penalties are imposed on them for speaking out, such officials will surely shrink even deeper into their shells. They will perceive speaking to the public as negotiating a minefield. They may even become irresolute fence-sitters who go along to get along. For a liberal democracy, such a chilling effect on political appointees is not something anyone wants to see.

To control what political appointees say, they must bear primary responsibility for their speech. They must be adept at communicating and dialoguing with the public, but also avoid glibness. If they utter something inappropriate, they must apologize. If their apology fails to remedy the situation, they must resign without being asked. This is to be expected.
Japan's Minister of Legal Affairs Yanagida touched off a firestorm with "two words" and betrayed his contempt for the Diet. Having blundered,
he had little choice but to apologize and step down. Of course, different political parties have different norms. KMT officials are often inept at public speaking. They often fail to communicate effectively during the decision-making process. When it comes to cabinet reshuffles, they are often a day late and a dollar short. DPP officials often have the gift of gab.
Sometimes officials such as Tu Cheng-sheng or Chuang Kuo-jung deliberately incite controversy. The ruling DPP administration may feel they did nothing wrong or cover for them. Even if we had a "Big Mouth Clause," would that really compel them to step down?

The Examination Yuan has proposed a "political appointees law." Apparently it has lost its understanding of the distinction between the party and the government. For example, the proposed law stipulates that political appointees shall not use government resources for partisan political activities. It stipulates that when political appointees leave office, they must be accountable. It stipulates that they may not conceal or damage documents or data. It stipulates that during working hours they may not participate in partisan political activities. Two changes in ruling parties have already taken place. Yet the no man's land between the party and the state has apparently grown. This law will redefine and clarify the powers and responsibilities of political appointees. It will encourage both the ruling and opposition parties to engage in reflection. But adding the "Big Mouth Clause" to the law is not necessarily an improvement. It is not necessarily beneficial. The existence of the provisions may encourage the arbitrary invocation of the law merely to harass political appointees. It may invite unnecessary conflict and turbulence.

Given political developments on Taiwan, stuffed shirt political appointees no longer meet the requirement of the times. If they lack communication skills, they may find it difficult to be effective political appointees. In that case, officials who commit verbal gaffes should resign before being asked.
We hardly need laws to force them out. Until then, we may wish to leave more room for discretion. We hardly need to sew their mouths shut with the law.

大嘴巴條款會使政務官沒嘴巴？
【聯合報╱社論】 2010.12.16

立法院審查政務人員法草案，一審通過「大嘴巴條款」，規定未來政務官員因多言、失言惹禍，影響施政決策或政府形象，都應辭職下台。倘若就此完成立法，政務官發言的「心中一把尺」，將變成「法上一把尺」，不免引發見仁見智的議論。

「大嘴巴條款」入法，一方面顯示外界對政務官才德的要求更高，另方面也反映了政務官言行常常招致非議的問題。就現實看，我國政務官的發言能力確有加強之必要，問題是誰來決定什麼樣的嘴巴算太「大」？再者，若大嘴巴該下台，那麼「沒嘴巴」的政務官是否會更好？此一條款有否必要、會不會治絲益棼，值得探討。

所謂政務官，是指受政治任命、負政治責任的官員，與一般行政體系公務員不同。既能出任政務官，理當更具瞻矚及政治敏感，若本身發生重大失言、失德，或無法達成託付，自應主動掛冠求去以示負責；這是現代政務官的基本素養，其實已無待立法規範。以我國現行體制，主政者只要認為自己團隊裡的政務官員失格或不夠稱職，也可隨時調動撤換。若有政務官失言，導致輿論沸騰，而其首長竟無動於衷或曲意迴護，恐怕還會引火上身。

亦即，不論是官員自行引咎請退，或遭首長主動撤換，政務官因失言下台，目前並無處理上的困難。問題是，失言原為政治問題，以政治處理可有較寬裕的拿捏；若變成法條，要用刻板的法律來處理政治進退，反而恐顯拘泥。例如，吳揆談健保提到林益世時，因語句少了「十分之一秒的停頓」，主詞遭到誤解，多日始獲釐清。包括因楊淑君事件掛冠的體委會副主委陳顯宗，他那句「吞下去」的禍言，時過境遷後回頭看，若說此話是為維護整個中華隊的比賽權而發，不也有其理性思考的一面？

再說，台灣多年來推動人民言論「解禁」，若政府反要提高對政務官發言的管制，恐怕將予人開倒車的印象。難怪有人說，此法儼如「偶語棄市」、「政務官的白色恐怖」。更不利的是，目前一些出身官僚系統的政務官，往往拙於說明、怯於面對社會大眾，造成許多決策溝通不良；若是再設下對於發言的懲罰，勢必讓這類型官員更形退縮，視與社會對話為畏途，甚至變成唯唯諾諾、只知附和的人。就一個民主開放社會而言，政務官之間若出現這種寒蟬效應，絕非人們樂見的發展。

要管理政務官嘴巴，首要責任在他們自己：既要勤於溝通對話，又要避免輕率油滑；一旦說出什麼不得體的話，觸犯了社會大忌，若道歉仍無法收拾，即應考慮主動求去，這是基本修養。日本法務大臣柳田的「兩句話」風波，透露了他對國會的敷衍與輕蔑；這種錯誤，除了道歉下台，沒有第二條路可走。但大家別忘了不同政黨之間的文化差異。例如，國民黨政務官多半拙於表達，決策上通常是溝通不足的問題更為嚴重，內閣處理人事異動也往往慢三拍。民進黨官員則巧言善辯，有時甚至像杜正勝、莊國榮那樣故意說出無理挑釁的話；如果主政者不認為不妥或刻意袒護，就算增訂了大嘴巴條款，又能叫他們下台嗎？

考試院所提的「政務人員法」草案，試圖對漸形混淆的黨、政分際，找到一個界線，諸如：政務官不得動用行政資源辦理政黨活動，政務官離職時應辦理交代，不得隱匿或毀損文書、資料，上班時間不得參加政黨活動等。兩度政黨輪替後，黨政之間的不明地帶似有擴大之勢，透過此法的訂定，對政務官的權責重新清理定位，有助於朝野政黨的反思。然而，將「大嘴巴條款」納入其中，卻未必是進步、有益的作法，反而可能因此條文的存在，造成各界動不動就「依法」對政務官言行作無關宏旨的品頭論足，徒增施政上的無謂衝突與紛擾。

以台灣的政治發展，木訥寡言的政務官已不再符合時代要求，若沒有一點言語應對能力，將難成為勝任的政務官。在那種情況下，失言官員應自知去從，不必等法律來趕他走；而在此之前，我們也許不妨多留些空間，不必硬用法律來縫住他們的嘴巴吧？