The President Reporting to the Legislature Has Constitutional Implications

The President Reporting to the Legislature Has Constitutional Implications
China Times editorial (Taipei, Taiwan, ROC)
A Translation
April 23, 2012

Summary: Should President Ma deliver his State of the Nation Report in the Legislative Yuan? Once the legislature approves this bill with a majority vote, a constitutional precedent is likely to become a constitutional norm. The Republic of China's constitutional framework will resemble a presidential system. The power of the premier and the legislature may be weakened. That is something all parties need to consider.

Full Text below:

Should President Ma deliver his State of the Nation Report in the Legislative Yuan? Once the legislature approves this bill with a majority vote, a constitutional precedent is likely to become a constitutional norm. The Republic of China's constitutional framework will resemble a presidential system. The power of the premier and the legislature may be weakened. That is something all parties need to consider.

The Additional Articles of the Constitution, Article IV, paragraph 3, states that "when the Legislative Yuan convenes each year, it must listen to the president's State of the Nation Report." They authorize the legislature to ask the president to report to the Legislative Yuan. President Ma has been re-elected, but has yet to officially begin his second term. His poll numbers are in the cellar. The opposition DPP caucus is sharpening its knives. The ruling KMT caucus is hoping to use the president's State of the Nation Report to enhance the KMT's political stature. President Ma has already indicated that he has no objection to delivering the State of the Nation Report in the Legislative Yuan.

The various parties have made their own political calculations. But they all appear to have overlooked one thing. If a legislative majority passes this bill requiring the President to deliver his State of the Nation Address in the Legislative Yuan, it will have far-reaching constitutional and political implications. A constitutional amendment abolished the National Assembly. Additional Articles gave the Legislative Yuan the power to hear the President's State of the Nation Report. But the fact remains the president has never reported to the Legislative Yuan. If the president reports to the Legislative Yuan, his action will have constitutional implications. It will establish a legal precedent. It will transform the existing dual-leadership system into a presidential system.

Under the presidential system in the United States, the president must report to Congress. But the Additional Articles of the Constitution state that only the Legislative Yuan shall listen to the President's State of the Nation Report. Once this happens, this constitutional precedent is certain to become a constitutional norm. It will transform the existing dual leadership system into a presidential system. On the surface it expands the power of the legislature. It authorizes the legislature to demand that the president deliver the State of the Nation Report in the Legislative Yuan. But does the Legislative Yuan really have the power to oversee the President? That remains a giant question mark. The legislators may think that having the president deliver the State of the Nation Report in the Legislative Yuan makes the President answerable to the legislature. But that is mere illusion. The Legislative Yuan has essentially no power to oversee the President. The Legislative Yuan can only oversee the Executive Yuan, not the president. Making the President report to the Legislative Yuan, merely derogates both the authority of the Legislative Yuan and the authority of the Executive Yuan.

Consider the political impact. Consider the number of votes received. The president clearly has greater voter support than any legislator. President Ma Ying-jeou's approval ratings may be low. But that does not mean that the Legislative Yuan will prevail in a clash with the president. The Legislative Yuan can oversee the Executive Yuan, whose officials are not elected. But suppose a precedent is established? Suppose the President delivers the State of the Nation Report in the Legislative Yuan? Suppose that he even submits to interrogation by legislators? Not only would that be unconstitutional, it would also weaken the Executive Yuan.

When President Chen Shui-bian was re-elected, the DPP held a minority in the legislature. The ruling DPP was small, The opposition KMT was large. Chen's policies were often blocked. Had he been permitted to report to the Legislative Yuan, it would have enabled him to look more powerful than he was. It would have provided him with a better bully pulpit. That is why being asked to deliver the State of the Nation Report in the Legislative Yuan is a dream come true. The KMT, as the majority party, could have permitted Chen Shui-bian to speak before the Legislature. But in the end it insisted that "Without the truth, there is no president." Chen Shui-bian was denied his wish.

If the President is allowed to deliver the State of the Nation Report in the Legislative Yuan, he will be the big winner. Take the United States for example. When the president delivers a State of the Union Address, the opposition party must give him a standing ovation. They cannot cross-examine him, The President delivers his address, then walks away. At such a moment who does not know the president is the star of the show? On the surface, the president is reporting to Congress, In fact, the president is reporting to the public. That is why in the United States, even President George W. Bush, who is has zero public appeal, sees his approval ratings climb after reporting to Congress.

For the DPP, the Legislative Yuan is the real battlefield, The Executive Yuan is the branch of government over which the Legislative Yuan has true oversight. The Legislative Yuan has no powers of oversight over the president. Once he has been "invited" to the Legislative Yuan, it will become a case of "inviting someone to the party is easy. asking them to leave is difficult." The president will be in a better position to manipulate the legislature. The DPP has no consensus on the constitutional framework. Before, DPP legislators held differing veiws on whether Chen Shui-bian should be allowed to speak before the Legislative Yuan. They may have been right, or they may have been wrong. But do they still hold the same views today as they did back then? For the KMT, once the president delivering a State of the Nation Report in the Legislative Yuan becomes standard practice, they will be unable to prevent a loose cannon like Chen Shui-bian from doing the same thing.

The impact on the Executive Yuan would be the same. Before, when the president reported to the National Assembly. it was over constitutional amendments and major policies. But when reporting to the legislature, the issues would be social issues that could and should be answered by the Executive Yuan. If the president answers these questions, who is going to listen to wha tthe Executive Yuan has to say? For President Ma, the Additional Articles of the Constitution allow him to report to the Legislative Yuan. But if the existing constitutional framework undergoes substantive change. will they contradict President Ma's long-term constitutional proposals? This is something President Ma needs to consider.

中時電子報 新聞
中國時報 　2012.04.23
社論－總統赴立院報告將衝擊憲政體制
本報訊

    　馬總統是否要到立法院國情報告，一旦國會多數黨提案通過，這個「憲政先例」很可能成為未來的「憲政慣例」，將使台灣憲政體制更向總統制傾斜。也很可能進一步弱化閣揆與立院的權力，這一點各方恐怕都需要再深思熟慮。

    　《憲法》增修條文第四條第三項「立法院於每年集會時，得聽取總統國情報告」，賦予立院有權邀請總統赴立法院報告。值此馬總統連任尚未就職前民調就已跌落谷底之際，不僅在野黨團磨刀霍霍，執政黨團也希望總統能藉國情報告拉抬執政黨聲勢；至於馬總統則已表態並不反對到立法院國情報告。

    　不論各方怎麼算計，似乎都忽略若是這次國會多數黨通過總統到立法院國情報告的提案，將可能造成憲政意涵及政治上重大的衝擊。畢竟自修憲廢除國民大會後，雖然增修條文賦予立法院聽取總統報告的權力，但事實上總統從未到立法院做過報告，這是因為總統到立法院報告這件事，具有極大的憲政意涵，會形成新的慣例，使得現有的雙首長制更朝向總統制傾斜。

    　實施「總統制」的美國，總統必須向國會報告。但依《憲法》增修條文，只有立法院得聽取總統國情報告的文字，而一旦這個「得」實現之後，勢必就會成為「憲政慣例」，這也意味我們也將逐漸成為「向總統制傾斜的雙首長制」，表面上看似立院的權力變大，可以把總統請到立法院報告，但立法院是否就真的有權力監督總統？恐怕是個大問號。立委可能以為讓總統到立法院做國情報告，有了讓總統向立院負責的感覺，但這不過是一種錯覺。立法院實質上並沒有監督總統的權力，立法院能夠監督的是行政院而非總統。讓總統到立法院報告，反而是讓立法院與行政院的權力同時減損。

    　再從政治上的衝擊看，以得票數來看，總統的民意基礎肯定大過立委，雖然目前馬英九總統看似民調低迷，但並不意味立法院與總統有衝突時，獲利一定是立法院。原本立法院還可監督沒有民意基礎的行政院，未來若是開啟總統到立法院國情報告的先例，甚至還接受立委詢答後，不再只有違憲問題，而是讓行政院更為弱化。

    　當年陳水扁總統連任，民進黨在國會是少數黨，朝小野大，政策常遭杯葛，若能到立法院報告，反而讓他從弱者轉為強者，更可以直接與人民對話；所以對到立法院國情報告，可說是求之不得，若以當時國民黨一樣為多數黨的情況下，要讓陳水扁到立法院，並不是不可能的事，但最後還是以「沒有真相就沒有總統」，讓陳水扁沒有「得逞」。

    　總統赴立法院國情報告，總統往往是最大贏家。以美國為例，總統發表國情咨文時，在野黨不僅也要起立鼓掌，更不能質詢，總統報告完就走人；這一刻誰不知道，總統才是國會殿堂真正的主角，表面上看似總統向國會報告，其實是在對人民報告，因此在美國，就連最無群眾魅力的小布希總統，一到國會報告，民調也是跟著攀升。

    　對民進黨而言，國會才是真正的戰場，行政院才是它真正有權力監督的對象，一旦把不受監督的總統「請」到立法院，「請神容易送神難」，反而讓總統有更大力量操縱國會。何況目前民進黨對憲政體制看法莫衷一是；而那些當年對陳水扁立法院報告的看法不論抱持是對或錯的人，現在是否也是同樣見解？對國民黨而言，一旦讓總統赴立法院國是報告形成憲政慣例後，若以後再碰到一個像陳水扁這樣不受控制的總統，將毫無招架之力。

    　對行政院衝擊也一樣。以前總統到國民大會報告，至少內容與修憲、國家重大政策有關，但場合轉到立法院，內容將變成行政院即可回答的民生議題，未來從總統的口中，就可以回答這些問題，還有人要聽行政院回應嗎？同樣對馬總統而言，雖然《憲法》增修條文可以讓他到立法院報告，但如果此舉將對現行憲政制度造成實質的改變。是否與馬總統長期的憲政主張有隱含的矛盾？也是馬總統可以思考的問題。