Amend the Constitution, Combine the 2016 Elections

Amend the Constitution, Combine the 2016 Elections
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
March 9, 2011

The dates for the presidential and legislative elections are too close together. They necessitate holding two elections merely three months apart. On the one hand, the timing fails to reflect public wishes. On the other hand, it clearly squanders public resources. Therefore the suggestion that the two elections be combined has considerable justification. The DPP has recently said it has "no particular objection."

Combining the elections however, will have constitutional repercussions. One must pay attention to these repercussions. Combining the two elections will require constitutional amendments. The legislature may not have time to pass these amendments. The Blue and Green parties should first amend the constitution. They should first assure the public that the elections will be combined no later than 2016. They can then adopt the administrative and political measures required to merge the presidential and legislative elections.

The president has a four year term. Inauguration day is May 20. Legislators also have four year terms. The legislature convenes each year between February and May and between September and December. A legislator's term of office expires on January 31. The constitution stipulates that newly elected legislators must begin their terms on February 1.

The constitutional amendments in question make no provisions for the date of the presidential election. But the Presidential and Vice Presidential Election and Recall Law states that elections must be announced 120 days before term expiration, and that balloting must take place 30 days before term expiration. For legislators, the constitutional amendments in question merely state that balloting must take place three months before terms expiration. The Civil Service Personnel Election and Recall Law states that balloting must take place at least ten days before term expiration.

Suppose we wish to combine the elections during the current term, by combining the above laws. Our choice of election dates will be limited. The election may need to be held after November 1, 2011, but before January 20, 2012. Only then would the date for the legislative elections be legal. The date for the presidential election is more flexible. As long as it is consistent with the constitution and the law, it can be moved up and held on the same day as the legislative elections. These are the options under the constitution and the law.

Suppose we combine the two elections, according to the above requirements. The presidential election would have be moved up from its current date in March, to sometime before January 20. Next, the date would have to be coordinated with the legislative elections. Suppose both elections are moved up to January 20. The term of office for the outgoing president would be shortened by at least two months, Add two months to that, and it could be shortened by as much as four months. Suppose current conditions prevail. Suppose Ma Ying-jeou is re-elected. Or suppose conditions change, and another change in ruling parties follows. The president's term of office would be too long. It would risk violating the constitution.

Now take the legislative elections. As mentioned earlier, incoming legislators would assume office on February 1. The law states that elections must be held at least 10 days in advance. But if the legislators are sworn in less than 10 days after elections are announced, the timing would be too rushed. Therefore delaying the changing of the guard as long as the law allows may not be appropriate. If the timing is too rushed, and delays are too long, the presidential election would have to be moved up. The term of the outgoing president would have to be extended. This presents us with a dilemma.

The above applies only to the constitution and law as they currently stand. Changing the polling dates in order to combine the elections must be regarded as an expedient. If the legislature wishes to combine the presidential and legislative elections, and avoid moving up the presidential election or postponing the legislative elections, it must amend the constitution. It has no alternative. Changing the term for legislators requires too many changes to the constitution. It would be easier to change the term for the president, Next, the legislature will need to amend the law. The presidential and legislative elections must precede term expiration by the same amount of time. This will enable the legislature to combine the elections. This will enable the legislature to avoid making the president's term too long, or legislators' changing of the guard too rushed. But we have a problem. Even supposing the ruling and opposition parties were in complete agreement, it is too late to amend the constitution and the law during the current term.

The Blue and Green political parties have already agreed to combine the two elections, Each party has its own political calculations. They could change and combine the election dates without amending the constitution and the law. But that would be an administrative and political solution. The constitutional and legal problems would linger. If they fail to amend the constitution and the law, they will be forced to change the election dates repeatedly for every election. Sooner or later, this would precipitate a constitutional crisis.

There is one solution. The two parties should issue a joint declaration. They should immediately propose an amendment to the constitution and the laws. They should assure the public that the elections will be constitutionally combined no later than 2016. They should present this constitutional amendment to the public for a popular referendum. Such a move would help persuade the public of the need to change and combine the elections. That said, combining the elections during the current term could precipitate a constitutional crisis.

Can the elections be combined? Combining them could conserve precious social capital. Combining them could also precipitate a constitutional crisis. The pros must be weighed against the cons. The gains must be weighed against the losses.

先修憲確定二○一六年合併選舉
【聯合報╱社論】 2011.03.09

總統大選與立委選舉的日期太近，致在三個多月之內接連舉行兩次重大選舉；一方面未必能反映民情民意的時間差異，另一方面因而也顯得更加耗損社會成本。所以，合併舉行之議有其道理，如今民進黨也表示「不會特別反對」。

唯合併選舉在憲政體制和憲政運作方面，必須注意其連帶影響。問題卡在此屆若要合併選舉的修憲修法工程已趕不及，我們建議：藍綠兩黨先發動修憲修法，對社會作出至少在二○一六年可以合併選舉的保證，再來斟酌是否用行政及政治手段使此屆總統及立委合併選舉。

總統任期四年，在換屆年的五月二十日就職。立法委員任期四年，每年集會是二月至五月、九月至十二月，故換屆年的一月三十一日即上屆任滿日，而二月一日即新任立委的就任日，此為憲法所明定。

憲法增修條文對總統選舉辦理期間未加規定，但總統副總統選罷法則規定，須在任滿一百二十日前公告、任滿三十日前完成選舉投票。立法委員方面，則憲法增修條文只規定任滿前三個月內選出之；而公職人員選罷法則明定，須於立委任滿十日前完成選舉。

綜合上述的規定，若此屆要合併舉行，則可能選擇的區間，只能在民國一百年十一月一日以後，至一百零一年一月二十日以前，以使立委選舉日期合法；總統選舉日期的彈性較大，可以在合憲合法的範圍內配合立委選舉日期的訂定，提前舉行。以上是憲政體制和法律規定下可能的選擇。

由上述規定可知，若採合併案，則總統選舉勢須由現行三月間舉行提前，最少是要提前到一月二十日以前，接著再看立委選舉如何配合；若以提前到一月二十日前合併舉行，則任滿總統的看守期至少由目前的約兩個月，再加兩個月，可長達四個月之久。以目前選情看，若馬英九連任，或可另當別論；但倘出現政黨輪替，則看守期過長，即可能發生種種憲政風險。

至於立委選舉，如前所述，新立委就任是二月一日，法律固然容許最遲在十日前選出，但選出後公告至新舊交接倘若只有不到十日，恐怕過於緊迫；故延後至法律許可的最大極限是否適當，自然亦應加考慮。而若顧慮新舊兩屆立委交接過於緊迫的問題，而不想要延後太久，則總統選舉就要再提前，因而舊任總統看守期也只得再加長，這就帶來兩難的局面。

以上所言，都是在不變動憲法和法律的前提下，採取彈性調整選舉投票日的措施以達合併目的，只能算是權宜處置。至於若欲使總統及立委合併選舉法制化，且消除提前總統選舉或延後立委選舉的連帶影響，則除修憲修法，別無他途。亦即，第一步須修憲調整總統任期，使之與立委任期同步；因為，若欲調整立委任期，變動的憲法條文太多，相較之下以調整總統任期較妥。第二步須修法，使總統和立委選舉，須在任滿前多長期間完成選舉投票的規定相同。這樣一來，即可達成選舉合併，又不致使總統看守期過長或立委就任期太倉促。問題是：即使朝野政黨此刻立即形成修憲修法共識，但在此屆選舉之前完成修憲勢已來不及。

藍綠兩黨如今皆表達贊同合併選舉之傾向，其中當然各懷政治盤算；故而在不修憲不修法的情勢下，亦有可能以調整選舉日期而合併舉行。但這也只是行政及政治解決，憲法及法律上的問題仍在；因為，若不修憲修法，總不能未來次次皆調整選舉日期，則遲早會爆發憲政災禍。

有一個可能的解決之道，即兩黨合議以政治宣示，立即發動單一議題的併選修憲修法，以保證至少在二○一六年可依憲依法合併選舉，並在此屆總統立委併選中將修憲案交付公民複決；在此一法律行動下，此屆若以調整選舉日期併選，或許對社會較具說服力。然而，即使如此，此屆若合併選舉，仍不能排除憲政風險的發生。

總之，是否合併舉行，勢須以合併可能節省社會成本及合併可能引發憲政風險的利弊做比較，務期合乎比例原則。