Beware of Further Distorting the Dual Leadership System

Beware of Further Distorting the Dual Leadership System
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
May 1, 2012

Summary: The president's State of the Nation Report should remain a policy statement, a vision for the future, and a national ritutal, all in one. It should not become a battlefield on which rival political parties exchange fire. This is what we advocated in our April 19 editorial This is what we advocate today.

Full Text below:

Successful constitutional evolution hinges on two factors. One. Have the legal requirements of the constitutional framework been met? Two. Can the amendments to the constitution be implemented in a real world setting? The president is taking these two factors into consideration. The President may visit the Legislative Yuan and deliver a State of the Nation Report. The controversy over his visit may seem like a trivial matter. But it must be handled with care. The visit must not muddy the legal situation. Because any wrong move, could further distort the framework and spirit of the constitution.

The current constitution provides for a dual-leadership system. But its legal framework is badly distorted. It has a number of serious problems. One. The premier, according to the constitution, is the highest official in the executive branch. The premier is answerable to the Legislative Yuan. Two. The president, according to the Organic Law of the National Security Council -- but not the Constitution -- has three powers. The president is responsible for national defense, foreign relations, and cross-Strait relations. But the president is not answerable to the Legislative Yuan. Three. A presidential candidate requires only a plurality to be elected. Four. The Legislative Yuan lacks the right of approval over the president's appointment of premier.

This framework has led to a number of problems in the real world application of the constitution. One. Requiring only a plurality can result in the election of a minority president along with a minority legislature. Two. The president may have received an absolute majority of the vote. But his party might not be the majority party in the legislature. Three. The Legislative Yuan lacks the right of approval over the president's appoiment of premier. Therefore it cannot implement the French style "executive power track change" system. During Chen Shui-bian's first four-year term, problems one and two prevailed. During his second four year term, problems two and three prevailed.

Therefore, the problems with the current constitutional framework include all the disadvantages of the dual-leadership system and none its advantages. This was the result of the Lee and Chen regimes' effort to destroy the constitution through the deliberate abuse of the amendment process. This has resulted in a constitutional mess that will be difficult to sort out. That said, although the constitutional framework has been distorted, it nevertheless remains workable. We need only avoid deliberately laid pitfalls. We can still correct its defects. We can still guide it down the right path. Constitutional scholars often say "a constitution grows in response to practical requirements." This is just such an example.

For example, the current constitution stipulates that when the president appoints the premier, the president does not need approval from the Legislative Yuan. But the current system does not forbid a minority president from appointing a majority premier, and allowing the premier to form a cabinet. In 2000, minority president Chen Shui-bian appointed KMT leader Tang Fei premier. Chen wanted to present the illusion of having won over the majority. Had he taken advantage of the latitude provided him by the constitution to form a majority cabinet, he could have implemented an "executive power track change" system. He could have "made the constitution grow in response to practical requirements."

Chen Shui-bian should have adopted the "executive power track change" system, but did not. Today, we face the State of the Nation Report question. Should Ma Ying-jeou take this step or not? This too, warrants caution. This might be one small step for President Ma. But it could be one false leap for the constitution.

For President Ma, visiting the Legislative Yuan to deliver the State of the Nation Report, is certain to enhance the status of the president. Should he participate in either a one question one answer Q&A session? Or an all questions answered at once Q&A session? President Ma's ability to handle himself in either situation should not be underestimated. Besides, if in such a venue, the opposition DPP behaves too crudely. they will only undermine their own image. Therefore Ma Ying-jeou should not be the criterion the ruling and opposition parties use to decide whether to host a State of the Nation Report. They should consider the requirements of constitutional evolution.

The legislature could create a badly distorted constitution. No wonder it could gild the lily by passing the Law Governing the Authority of the Legislative Yuan. The constitution has evolved over the past two decades. But only when the amendments were implemented, did the public realize how despicable and ignorant the legislators who amended the constitution were. The constitution and laws must be obeyed. But the latitude allowed by the constitution and the laws should also be observed. Only then can the constitution and laws grow in response to practical requirements.

As matters stand, the president may deliver a State of the Nation Report, based on either the constitution or the Law Governing the Authority of the Legislative Yuan. The Legislative Yuan may ask for a Supplemental Question and Answer session. Legally both are possible. Years ago. Chen Shui-bian could allow the majority party to form a cabinet, even as he clung to minority government. Faced with the choice today we believe a conservative approach makes sense. The president should deliver his State of the Nation Report. But he should not participate in either a one question one answer supplementary Q&A session, or an all questions answered at one time Q&A session. Either would be tantamount to submitting to interrogation.

In fact, Ma Ying-jeou is a majority president with a legislative majority. He enjoys a number of distinct advantages. But one day a minority president with a legislative plurality could appear. The president could command only a minority in the legislature. When the Legislative Yuan convenes each year the president could be summoned to the Legislative Yuan for a one question one answer Q&A session, or an all questions answered at one time Q&A session. A precedent would be established within the system for such an annual ritual. This is a special occasion that should not be made a matter of routine.

The precedents are universal. Under a presidential system, a president never submits to questioning by a legislature; Under a cabinet system, the president never submits to questioning by a legislature. Under a dual-leadership system, the president never submits to questioning by a legislature. As we can see, we must not be reckless with our constitutional framework. Our constitutional framework has already been distorted. Therefore we must be doubly careful with its application in the real world. The opposition DPP must do more than seek opportunities to give Ma a hard time. It should consider what is best for the nation in the long run.

The president's State of the Nation Report should remain a policy statement, a vision for the future, and a national ritutal, all in one. It should not become a battlefield on which rival political parties exchange fire. This is what we advocated in our April 19 editorial This is what we advocate today.

慎勿進一步扭曲雙首長制
【聯合報╱社論】
2012.05.01 01:32 am

憲政的演進繫於兩大因素。一、憲法結構的法理條件是否周延。二、現實憲政的實際操作是否正當。基於這兩點考慮，總統赴立院作國情報告的爭議，看來雖是小事，卻必須特別小心慎重；切勿在混濁的法理上，因錯誤的操作，使得憲政的架構及精神更形扭曲。

現行憲法謂為「雙首長制」，但法理結構極為扭曲。主要的問題在：一、行政院長仍為憲定最高行政首長，對立法院負責；二、總統依《國安會組織法》（不是根據憲法）割取了國防、外交及兩岸關係「三權」，但不對立法院負責；三、總統選舉採「相對多數制」；四、立法院對總統任命行政院長無同意權。

這樣的架構，使得在實際憲政運作中可能出現若干異象：一、產生「相對多數」的「少數總統」，並在國會亦占少數；二、總統雖是「多數」產生，但其政黨在國會不占多數；三、因立院無行政院長任命同意權，無以實現如法國式的「行政權換軌制」。陳水扁的首任四年，是前述一加三的情勢；後四年則是二加三。

因此，現行憲法的法理架構可謂盡承「雙首長制」之害，而全無「雙首長制」之利。這是李扁二朝修憲竟爾導致毀憲的結果，已然成為難以挽救的憲法災禍。不過，憲制架構雖然混濁扭曲，但在現實憲政的實際操作上，倘能操持正當，則非但可迴避惡意的陷阱，尚且有可能導正憲制的缺陷，重新將憲政引入大道正途。憲法學者常謂「憲法會因實際操作而成長」，即是此理。

例如，憲制規定總統任命行政院長，不必取得立法院之同意；但現制亦未禁止一位「朝小野大」的「少數總統」，任命多數黨組閣主政。陳水扁在二○○○年出任「少數總統」時，以國民黨籍的唐飛為首任閣揆，是想要偽裝出籠絡多數的假象；倘若他當年在憲法給他的空間下，主導由立院多數組閣，也就可以成就了「行政權換軌制」，使得憲法「因實際操作而成長」。

若說「行政權換軌制」是陳水扁當年應當走、可以走的一步，但他沒有走；今天面對國情報告這一步，馬英九要不要走，或該如何走，也應謹慎小心。因為，這或許只是馬總統的一小步，但不可成為憲政操作上錯誤的一步。

其實，對馬總統而言，赴立院作國情報告，必然將提升其總統的憲政地位；至於是否「一問一答」或「綜合回答」，也不能小看馬總統在歷次辯論場合的表現。何況，在此種場域中，在野黨如果動作太過粗野，亦未必能給自己加分。所以，朝野之間，不能以馬英九做為評量國情報告的標尺，而要考慮整個憲政的發展與成長。

然而，既能修出這麼一部扭曲的《憲法》，也莫怪立法院會在《職權行使法》上畫蛇添足。二十年來的憲制發展，都是非到了實際運作，不知修憲立法者的可惡與無知。唯憲法及法律雖須遵守，但憲法及法律所容許的空間也應妥適運用，俾使憲法及法律皆能「因實際操作而成長」。

現今的情況是，不論就《憲法》或立法院《職權行使法》，總統可作報告，亦可不作；立院可要求「補充問答」，也可不要求。就法理言，這是兩可的境況；正如當年，陳水扁可交多數黨組閣，亦可堅持「少數政府」。面對今日抉擇，我們認為以保守為宜；亦即總統作報告，但不必「一問一答」或「補充問答」，因為兩者都形同質詢。

其實，馬英九是「多數總統」及「國會多數」，已具客觀優勢；但若另日又出現「相對多數」的「少數總統」，且其在國會居「朝小野大」的少數，則於「立法院每年集會」時，總統被召至立法院「一問一答」或「綜合問答」，不啻即是在體制上內建了一年一度的政潮，殊非宜妥。

舉世通例，在總統制中，總統不受國會質詢；在內閣制中，亦不可質詢總統；在雙首長制中，總統也不受質詢。可見此制輕率不得。憲法的法理結構已經扭曲了，因而實際的憲政操作更要小心；在野黨不必圖一時打馬的痛快，而應有可大可久的思慮。

總統國情報告的體制，應當維持「政策宣示／願景呈現／國家典儀」的多重性質，不應成為政黨交火的戰場。這是本報四月十九日社論的主張，現今仍作如是觀。