Nominations Should Stress Professionalism, Not Political Rewards

Nominations Should Stress Professionalism, Not Political Rewards
China Times editorial (Taipei, Taiwan, ROC)
A Translation
May 21, 2011

Election season is upon us. The ruling and opposition parties are each holding their legislative primaries. Several veteran legislators have lost their bid for re-election. This has been the case for both major parties. Changes to the electoral system may have affected the election results. Public sentiments may also have changed. A new generation of voters is replacing the old. The two major parties are about to announce their nominees for the upcoming legislative election. It is time to consider what is missing in the ROC Legislative Yuan. It is time to consider how the mechanism by which political parties nominate legislators without portfolio can be changed and improved.

The Legislative Yuan is the primary battlefield for to partisan political struggles. It is a political body whose primary concern is political maneuveuring. But the main function of the Legislative Yuan, as its name implies, should be to legislate. The authoring of laws is not merely a political activity. It is also a professional activity. In the past, fisticuffs often broke out in the legislature. It was not a place where one could engage in rational political discourse. The impression it left on the public was negative. In recent years, there have been fewer fisticufss. But has political discourse become more professional as a consequence? Not really.

The Legislative Yuan deals with two kinds of legislation. The first is legislation which closely affects a party's political fortunes. Such legislation is highly political in nature. Absent negotiations, they are likely to meet resistance. If they are passed without negotiations, they are likely to lead to major mobilization and conflict. It is a case of politics above all else. The second type is legislation not political in nature, but whose authorship requires a high degree of professionalism. Such legislation requires professionalism far more than political correctness. Such legislation vastly outnumbers highly political legislation. If such legislation receives inadequate attention from legislators, the laws will be poorly written.

Some people think that if legislation requires professional authorship, it can be written by the executive branch. They say legislators have too many other matters to attend to. They may actually detract from the process. This argument does not hold water. But it does highlight the problem. Some people think too much participation by legislators undermines the quality of legislation. They question the professionalism of legislators. They feel that the executive branch ought to determine the content of bills to be passed by the legislature. This affirms the professionalism of the executive branch. But it ignores the importance of legislative checks and balances on the executive branch. The Legislative Yuan is not supposed to be a rubber stamp. If lawmakers lack legislative expertise, this is a problem that must be addressed, and not bypassed.

A while back, a referee caused an uproar by sexually molesting several young children. Many blamed the justice system. In fact, when the criminal codes were amended, the sexual molestation of young children was divided into two categories: forcible, and non-forcible. This forced the courts to determine whether young children were subject to force during sexual molestation. This reflected a defect in the law. This was a law that was non-political in nature. A lack of professionalism within the Legislative Yuan led to a defective law and serious consequences.

After taking office, President Ma promoted two domestic laws patterned after the UN Human Rights Convention. The plan to adopt two provisions of the convention and make them domestic law was well-intentioned. But the law includes at least three defects. These defects reveal the lack of professionalism within the legislative process. First, the two provisions of the UN Convention on Human Rights, involve certain objective preconditions. The authors of the laws lept before they looked. They failed to discriminate. Their rush to transform the two conventions into domestic law was clearly premature. Secondly, they passed the laws, but they failed to include the two conventions as an attachment. They passed the wrong portion of the Chinese language edition of the two conventions. Transposing them and reusing them led to confusion. Such a mistake was unprecedented. Thirdly, two years after their passage, they will be in contravention of domestic law, and will have to be totally amended. The laws will expire in December of this year. The Legislative elections are just around the corner. Hundreds of laws must be amended within by then. [ 縱不跳票? ] Rash package votes are clearly at odds with proper procedure. These laws were legal landmarks. If even they were handled so shoddily, one can imagine how poorly written other laws must be.

The laws passed by the Legislative Yuan cannot withstand close scrutiny. This was the direct result of a lack of legal professionals. This is not a matter legal aides from the Legislative Yuan Legal Bureau can handle. The Legislative Yuan has over one hundred legislators. Only a handful know the law. In Western countries, legislators hark from the legal profession. They account for a majority of the members of their parliaments. In earlier days, DPP legislators were mostly lawyers. Today they have no knowledge of the law, but fill the legislature. The number of KMT legislators who have no knowledge of the law is even more appalling. The Legislative Yuan passes criminal and civil laws that affect people's lives. This requires a high degree of professionalism. But legislators lack talent they can rely on. This is deeply worrisome. The legislator without portfolio seats within the Legislative Yuan are supposed to be for professionals of special ability. But the ruling and opposition parties have chosen to use these seats as rewards for political cronies. The Legislative Yuan is now filled with partisan pit bulls, but few professional legislators. If the quality of the legislation falls short, who is to blame?

The time to nominate legislators has come. Can the two parties nominate candidates with an eye on improving the quality of legislation?

不分區提名 重法律專業勿政治分贓
2011-05-21 中國時報

隨著選舉季節到來，朝野兩黨正在各地進行黨內立委初選，好幾位連任多屆的資深立委在初選中失利，是兩黨同有的現象，一方面顯示出選舉制度的調整可能影響選舉的結果，另一方面也可看出社會變遷，新舊世代交替的趨勢。在兩黨即將推出立委候選人名單的過程中，似乎有必要思考一下台灣立法院中欠缺了什麼，可以如何改善，特別是藉著政黨提出不分區立委名單的機制有所調整補充。

不可諱言，立法院是政黨政策角力折衝的關鍵所在，是個高度講究政治運作的機關。不過，立法院的主要功能，從其名稱可知道，是立法。法律的制訂，不僅僅是政治性活動，同時也是專業性活動。過去立法院經常打架，不是個理性問政的地方，予人的印象極差，最近數年，打架少了，但是理性問政的專業程度有增加嗎 ？恐怕不會得到太高的評價。

立法院的立法有兩類，一類是高度涉及到政黨政策進退的法案，政治性極強，不經協調取得協議，不可能順利通過，否則即要進行甲級動員的戰鬥衝突，當然是政治決定一切；另一類的法案，則是不涉及政黨政策的衝突，卻具有高度的法律專業性，也就是專業性的要求遠高於政治性要求的法案。此類法案，數量上也許遠較政治性質強烈的法案為多，得到的關注，特別是立法委員的關注如果不夠，立法品質就不會令人滿意。

有人以為，專業性的法案，仰賴行政部門的提案即可，立法委員的關切或參與過多，反而可能壞事。這樣的說法，不能成立，卻凸顯了問題所在。認為立法委員參與過多可能壞了立法的品質，是對立法委員立法的專業能力高度質疑；認為行政部門的提案不妨直接成為立法的內容，是在肯定行政部門的專業能力，卻忽略了立法院制衡作用的重要性。立法院不是行政院的橡皮圖章，但立法委員立法專業能力不足，確是不容忽視的問題。

前陣子引起軒然大波關於幼童性侵害案的恐龍裁判問題，許多責備都指向司法，其實刑法修法時將幼童性侵罪區分為強制罪與非強制兩類，促使法院進一步追問是否違反受害幼童的意願，也是問題發生的癥結之一，這就是一項非政治性法律修正時，因立法專業不足形成立法瑕疵而貽害不淺的具體實例。

再以馬總統就任後推動兩項聯合國人權公約國內法化的立法品質為例，立法院兩項人權公約的施行法，將公約條文整批轉化為國內法，是用意甚佳的創舉。但是至少有三處瑕疵顯示立法過程有欠專業嚴謹。一是兩項人權公約內容規定，也有實體規定，施行法囫圇吞棗，不加區別，一概轉換為國內法，顯是急就文章；二是施行法並未將兩公約條文納為附件，通過兩公約條文的中文版本錯件，付諸適用，極易發生混淆混亂，也是向所未見的立法失誤；三是施行法規定兩年內應將牴觸的國內立法一概完成修正，此一時限將於今年十二月屆滿，立委改選在即，數以百計的法律要在時限內完成修廢，縱不跳票，粗糙輕率的包裹表決，也可想見其不符程序正當性的程度。如此具有指標性的政策性立法，尚且粗製濫造，其餘法律的品質，不問可知。

立法院立法品質不堪細究，與立委中法律專業人士欠缺，有直接關係，這絕非立法院法制局的幕僚作業所能濟事者。現任百餘位立法委員中，以法律見長的立委屈指可數。西方國家習法出身的議員，每每占國會成員的重要比例。民進黨早年的律師立委比比皆是，現在似已無以法律知識在立法院中效力者。國民黨則更不堪數了。立法院常年通過許多攸關社會民生的民、刑以及其他專業度要求甚高的法律，立委卻無可以倚賴的人才，令人汗顏。立法院的結構，全國不分區立委原是要為專業立法人才預留席次，偏偏朝野政黨都已慣將不分區名額移作政治酬庸，立法院中盡是政治法案的政黨鬥士，卻缺乏專業立法的能人，立法品質不彰，怨誰？

提名立委的季節到了，兩黨能夠從提昇立法品質的角度覓選人才嗎？