Commemorate the Constitution. Close Constitutional Loopholes
China Times editorial (Taipei, Taiwan, ROC)
December 25, 2012
Summary: People are proud of the Republic of China's freedom and democracy. But people also know that our system of constitutional rule has yet to get on track. Legislation to block constitutional loopholes must be passed. We make this solemn appeal to the Legislative Yuan on Constitution Day.
Full Text below:
People are proud of the Republic of China's freedom and democracy. But people also know that our system of constitutional rule has yet to get on track. Legislation to block constitutional loopholes must be passed. We make this solemn appeal to the Legislative Yuan on Constitution Day.
The 1946 Constitution of the Republic of China included a commitment by the ruling Chinese Nationalist Party to create a new draft of the constitution. Chang Chun-mai, an opposition constitutionalist faction leader, authored the new draft. The draft was approved by the Chinese Communist Party's "Draft Constitution Review Committee." It was then referred to the National Constituent Assembly, including representatives from Taiwan, at which point it became the official Constitution. Chang was cautious. The Constitution retained the five branch framework of the "five-power constitution." The cabinet system specified the relationship between the President, the Executive Yuan, and the Legislative Yuan. These have uniquely Chinese characteristics. They are also consistent with constitutional standards. Unfortunately successive administrations have never treated the Constitution as a paradigm. As a result constitutional practice does not accord with constitutional norms. The Constitution has never been accorded the dignity and authority it deserves.
When the Constitution was first put into practice, Chiang Kai-shek cited the Communist Rebellion as a reason for the National Assembly to amend the Constitution and grant him expanded powers under the Temporary Provisions. This undermined the cabinet system. Lee Teng-hui and Chen Shui-bian advocated Taiwan independence. They disagreed with the Constitution. When they ascended to power they forced through seven pro-Taiwan independence amendments. Constitutional rule went out the window. The president acquired unchecked power. Pro-Taiwan independence elements relentlessly defamed and twisted the meaning of the Constitution. They turned it into an object of derision.
A Constitution is fundamental to a nation. A nation's constitution must retain its moral authority. Otherwise the government will have no basis for the exercise of its authority. The ruling and opposition parties will have no standard by which to determine who is right and who is wrong. The freedom and welfare of the people will be jeopardized. If the constitution loses its moral authority, political chaos will ensue. Therefore if we wish to uphold the constitution, enhance its authority, and avoid political chaos. we must first refute several fallacies.
One. When the Constitution of the Republic of China was drafted, 18 National Assembly Members from Taiwan went to Nanjing to attend the National Constituent Assembly. This event was clearly recorded in newspapers and in the minutes of meeting. The allegation that "Taiwanese never participated in the drafting of the Constitution" is an outright lie. Others say "The National Constituent Assembly lacked a popular mandate." We invite them to consider the delegates to the Constitutional Convention of 1787, who were not authorized by the public to draft a constitution. Japan's postwar constitution was drafted at General Douglas MacArthur's headquarters and delivered to the Japanese, who approved it. Why have advocates of Taiwan independence not challenged their legitimacy?
Two. The drafting of a Constitution requires compromises. But as long as the basic framework accords with constitutional doctrine, then it is a good constitution. The Constitution of the Republic of China is the result of partisan negotiations. It too contains compromises. The cabinet system accords with democratic constitutional standards. Two traditional Chinese powers of government, (examination and control) were combined with three Western powers of government (executive, legislative and judicial). This has genuine meaning. From a theoretical perspective, this is a perfectly workable constitution. It should be able to thrive, based on constitutional precedents and constitutional interpretations. It can hardly be dismissed as a "patchwork quilt," merely because its drafting included a few technical compromises. When Chen Shui-bian was president, he denounced the Constitution as "Urumqi," i.e., as oppressive to Taiwanese. This was an even more flagrant violation of his oath of office. If truth be told, he should have been prosecuted for these violations long ago.
Now that we have affirmed that the Constitution is valid, let us address the invalid and the unconstitutional. The current threshold for constitutional amendments is unsurmountable. Future constitutional amendments are certain to be package deals. This will only lead to greater chaos. We must seek solutions other than constitutional amendments. We must return to constitutional rule.
Seven constitutional amendments later, Article 53 of the Constitution still states that "The Executive Yuan is the nation's highest administrative organ." Article 57 still states that the "Executive Yuan must answer to the Legislative Yuan." These provisions have not changed. The president does not answer to the "highest administrative authority," i.e., the Executive Yuan. Therefore he should not wield executive power. The system should remain a cabinet system. Presidents Lee and Chen wielded unchecked power. They did so by exploiting loopholes in the Constitution, not by wielding constitutional mandates. Therefore we solemnly urge the passage of a "Presidential Powers Law" to plug the loopholes in the Constitution. This will put constitutional rule back on track.
The first thing this law would do, is limit the president's right of nomination. For example, the head of the cabinet should be a candidate acceptible to a majority in the Legislative Yuan. He or she should report to the legislature. The legislature must give him or her a vote of confidence before appointment. The qualification and nomination procedures for members of the Control Yuan, for members of the Examination Yuan, for the Grand Justices, and for the Prosecutor General should be spelled out. They should not be subject to interpretation by political parties. The President should not delay the exercise of his right of nomination. Doing so will only obstruct the constitutional process. Next, the law should spell out the conditions required to impeach the president. If the President violates the constitution and precipitates political chaos, he or she should be impeached, removed from office, and prosecuted upon his departure. This would implement what the Constitution refers to as "severe punishment."
Finally, the National Security Council and the National Security Bureau are remnants of the "Temporary Provisions." They became weapons by which the President meddled in the government. The Additional Articles established these two entities. Therefore the Legislative Yuan can rescind its authorization. It can repeal its Organic Law. It can return the power to the Executive Yuan. This may be difficult to do at the moment. But we must abide by the Constitution and the spirit of the cabinet system. We must change its organization. The Premier must exercise his right to countersign. Only then can he become the real leader of the two entities. In the future aspiring leaders, will enter the Legislative Yuan, and seek the premiership. The Executive Yuan and the Legislative Yuan should be the nation's decision-making center.
Chen Shui-bian held power for eight years. He showed that ambitious politicians can abuse constitutional loopholes and run amok. We must review the constitution. Promoting a constitutional amendment was a Ma administration campaign promise. Amending the constitution is currently infeasible. Ma should seize the moment. He should promote relevant legislation and plug constitutional loopholes. Otherwise, we could experience a repetition of what happened when Chen was elected president. Constitution Day would sooner or later become the Constitution Day of the Dead.