Severe Test of Constitutionality of Combined Elections

Severe Test of Constitutionality of Combined Elections
China Times editorial (Taipei, Taiwan, ROC)
A Translation
April 21, 2011

As expected, the Central Election Commission has reached a decision. It has confirmed that the 2012 presidential and legislative elections will be combined. The DPP is making a great show of denouncing the decision. In fact it is only too happy with the result. For the first time in the Republic of China's history, the presidential and legislative elections will be combined. This will affect how the ruling and opposition parties mobilize. This may lead to constitutional crisis next year.

The Central Election Commission has decided to combine the elections, mainly because combined elections save money. Voters will no longer need to trudge down to the polls twice in two months. This will reduce the need for political mobilization, and avoid unnecessary friction. These are real advantages that can be gained by combining elections. According to a poll commissioned by the Ministry of the Interior, 60% of the public favors combining elections.

Elections are held on Taiwan every year. They upset the public. Political insiders are concerned as well. Short-term electoral pressures encourage populism, and make it impossible for the administration and legislature to engage in rational policy making and debate. Take tax policy for military personnel, civil servants, and public sector school teachers. The policy underwent years of planning. But each time election season came around, the process came to a screeching halt. It was only finalized last year. Former Director of Health Insurance Yang Chi-liang's attempts to implement second generation health care were repeatedly frustrated, He was so angry he declared that the biggest problem on Taiwan was annual elections.

The Central Election Commission has decided to combine elections. The Ma administration says it will promote additional reforms simplifying and combining elections. In principle, elections will take place once every two years. The first will be a central government election. The second will be a local level election. Seven elections were scheduled for 2014. They will be reduced to two. There is nothing wrong with this general direction. But lest we forget, four years ago the Chen administration made the same proposal. It failed to pass. The reason was that the DPP presidential candidate wanted to form alliances with local KMT factions. As a result, they finally decided to hold separate elections. Currently the ruling party is pushing for combined elections. It may have far-sighted ideals. But it is rushing the measure through the system. The necessary ancillary measures have not been considered. This is probably the result of election considerations.

The real reason however, is that the KMT was too successful during the previous legislative elections. It won over two thirds of the seats. By contrast, during the municipal elections and legislative by-elections two years ago, the KMT lost repeatedly. Disaffected Blue Camp voters stayed away from the polls in droves. Combined elections may increase voter turnout. They may prevent the KMT's presidential candidate from being dragged down, in the event KMT legislators suffer a defeat just before the presidential election. The KMT has been careful in its calculations. The DPP has feigned outrage at the KMT. In fact the DPP is highly adept at coordinated electioneering. The presidential election may help DPP legislative candidates increase their visibility. It may help the DPP win an absolute majority in the legislature.

The two parties conspired with each other. They deliberately ignored important institutional considerations. First, four months separate the presidential election and the inauguration. Central Election Commission Chairman Chang Po-ya said that the constitution and the law are clear on how the government must operate. Even a change in ruling parties is not going to lead to a constitutional crisis, to a lame duck in the presidential palace. Can a caretaker government that respects the Constitution respond to a sudden crisis that might occur at any moment under globalization? These include new strains of influenza, inflation, and financial crises. People are extremely skeptical. Never mind that two ruling party changes led to caretaker governments meddling in personnel appointments, and the destruction of official documents. If a government that does not respect the constitution, is permitted to act as a caretaker for up to four months, the risks to the nation will be inestimable.

In fact, this four month lame duck period is more than a crisis management problem. It also affects the constitutional process. According to the constitution, the cabinet must resign before the opening session of the new legislature on February 1. The president must re-nominate the premier. If President Ma successfully wins reelection, and the KMT maintains an absolute majority in the legislature, the problem will be relatively simple. But suppose President Ma fails to win reelection? Even if the KMT maintains an absolute majority in the legislature, the cabinet would have to resign, in accordance with established precedent. Would the outgoing president still have the authority to nominate a new cabinet?

Suppose the outgoing president wants to leave the decision to the incoming president. He might refer to another constitutional precedent. In January 2008, the DPP was routed in the legislative election. In accordance with constitutional precedent, Chang Chun-hsiung's cabinet resigned. But then president Chen Shui-bian refused to accept their resignations. He offered five reason why he was not constitutionally obligated to accept their resignations. He attempted to establish a new constitutional precedent. But at the time a new president had yet to be elected. The president still had the right to turn down cabinet resignations. By contrast, when the new legislature takes office in 2012, a new president will already have been elected. Wil the defeated outgoing president still have the authority to turn down cabinet resignations? These are slippery constitutional questions. Never mind what would happen if the KMT lost both the presidential and legislative elections. The government might well find itself idled for four months.

Consider current developments. We lack a complete set of ancillary measures. The presidential and legislative elections must be combined. But the ruling and opposition parties are locking the barn door after the horse has been stolen. They have aggressively promoted the "Bill for the Transfer of Presidential and Vice Presidential Authority" in the legislature. Its provisions cover currently serving presidents who failed to win reelection, and cabinet officials who have not been reappointed. These lame ducks may not make civil service appointments. They must freeze all major policies. But this is not the root of the problem. The ruling and opposition parties must communicate and consult with each other. They must seek consensus. They must deliberate on whether to amend the constitution. They must resolve the problems created by the combined elections and the lame duck period.

合併選舉嚴重考驗憲政運作
2011-04-21 中國時報

一如預期，中選會最後拍板定案，確定二○一二年總統、立委選舉將合併舉行，民進黨表面痛批，其實是樂觀其成。可以說，中華民國史上首次的總統、立委合併選舉已經箭在弦上，這不但衝擊朝野動員的選舉型態，也對明年的憲政運作造成很大的考驗。

這次中選會決定合併的最主要根據是，合併選舉可以節省經費，選民不用在短短兩個月之內兩次奔波投票所，更可減少政治動員，避免無謂內耗；確實，這些都是合併選舉的優點，依照內政部民調，高達六成一的民眾贊成合併選舉。

台灣年年選舉，不只民眾深受其擾，有識之士也擔憂，短期的選舉壓力讓政治更民粹化，讓政府、國會無法理性的規畫、討論政策；如過去的軍公教課稅，規畫多年，但一碰到選舉就緊急煞車，一直到去年才定案；前衛生署長楊志良屢推二代健保都受挫，他氣得宣稱，台灣最大的問題，就是年年選舉。

因此，除了中選會決定合併選舉，馬政府強調將進一步改革簡併選舉，原則上未來選舉將兩年一次，一次選中央公職，一次選地方公職，將二○一四年前原定的七次選舉，簡化為二次選舉，此一大方向無可厚非，但大家如果不健忘，回顧四年前，當時的扁政府亦曾提出同樣主張，之所以未能落實，則是因為民進黨總統候選人希望能與國民黨地方派系合縱連橫，因此最後還是決定分開選舉；同樣的，這次執政黨力推合併選舉，雖然有宏遠的理想，但之所以倉卒成軍，未能籌畫配套措施，其實難脫選舉考量。

最直接的因素是，國民黨在上次立委選舉選得太好，超過三分之二席次，相對的，從前年的縣市長選舉、立委補選，國民黨卻是連選連敗，關鍵因素是藍營選民冷淡失望不願投票，若能合併選舉，一來可拉高投票率，二來則可避免立委先選先敗，西瓜效應波及總統大選。國民黨精打細算，民進黨則是批得言不由衷，因為民進黨最擅長聯合造勢，合併選舉可說是正中下懷，藉總統大選拉抬立委聲勢，正好可以衝刺國會過半的戰略目標。

可嘆的是，在兩黨的共謀中，制度性的因素完全被刻意忽視。首先，針對總統選舉與就職之間，長達四個月，即使如中選會主委張博雅所說，憲法與法律對政府運作有明確規範，即使政黨輪替也不會有憲政空窗期問題，但一個遵憲的看守政府，能不能因應全球化隨時出現、快速蔓延的危機，如新流感、通貨膨脹、金融風暴等，都令人相當懷疑；更別說，過去兩次政黨輪替都曾出現看守政府安插人事、銷毀資料等作為，如果一個不遵憲的政府，可以看守長達四個月，對國家體制的風險將難以估計。

其實，這四個月之所以稱為「憲政空窗期」，還不只是危機處理的能力而已，而是牽動更重要的憲政時程。因為，依憲政慣例，內閣必須在二月一日新國會開議前提出總辭，總統必須重新提名閣揆，如果馬總統順利連任，國民黨也能維持國會過半多數，狀況相對單純；但假如馬總統並未順利連任，即使國會過半，屆時，內閣依慣例總辭，「舊」總統是否具有提名的正當性？

總統若想要將這個決定留給新總統，可以參考另一個憲政慣例，二○○八年一月民進黨立委大敗，張俊雄率內閣依憲政慣例提出總辭，當時的總統陳水扁退回總辭，並以「非憲政義務」等五點理由，重建憲政慣例。只是，當時新總統尚未選出，總統尚有退回總辭的正當性；相對的，二○一二年新國會就職的同時，也已選出新總統，敗選的現任總統是否有足夠的權威可以退回內閣總辭，都是相當棘手的憲政問題；更別說，如果是國民黨同時輸掉總統與立委大選，政府可能真的要空轉四個月。

依照目前情勢發展，即使沒有完整的配套措施，總統、立委合併選舉已經勢在必行，朝野政黨的亡羊補牢之計，則是積極展開《總統副總統職務交接條例草案》的立法程序，規定未連任的總統及內閣，不得任用調遷公務員、並凍結重大政策變更；只是，這仍非治本之道，朝野未來仍須溝通協商、尋求共識，研議是否透過修憲手段，來化解合併選舉造成的憲政扞格及空窗期等問題。