President Constitutionally Obligated to Make New Nominations

President Constitutionally Obligated to Make New Nominations
China Times editorial (Taipei, Taiwan, ROC)
A Translation
August 19, 2014

Summary: The president must abide by the original intent of the constitution when nominating Control Yuan members. He must strengthen, not weaken its monitoring function. He must draw up a list of nominees satisfactory to all, and revive morale at the Control Yuan. The DPP must control its lust for power, and be willing to allow the president to fulfill his constitutional duty.

Full Text Below:

The Legislative Oversight Committee has exercised its right of approval. In an unprecedented move, it rejected 11 nominees. So what next? President Ma must give this some serious thought. More importantly, the DPP must rein in its lust for power.

First we must confirm that the legislature's approval vote was conducted in strict accordance to the law. Legislators are not permitted to reveal how they voted. Lawmakers crossing party lines to reject candidates they consider unqualified is consistent with the spirit of the constitution. If a nominee is unsatisfactory, a legislator must not ignore the facts and blindly vote to approve merely because he is a ruling party member. Conversely, if the nominee is qualified, opposition party legislators must not oppose the nominee merely for the sake of opposition. If legislators think only about their party and not the constitution, if they consider only partisan advantage and partisan political struggle, if they refuse to abide by the constitution, then what constitutional democracy will there be left to speak of?

When a ruling party behaves unconstitutionally, opposition parties must demand that it abide by the constitution. It should not urge the ruling party to turn its back on the constitution. The legislature is currently exercising its seldom invoked right of approval. Eleven blue camp seats still need filling. The opposition is saying that the president should not even bother with new nominations. They are saying that he should leave the nominations to the next president, two years from now. This is truly absurd. It ignores the constitution, It represents naked power lust that cannot go any lower than it already has.

Here we must ask a constitutional question. Is the president not obligated to make new nominations? Answering in the negative would be much too hasty. Suppose the legislature does not approve of the president's nominees? Can the president really refuse to make new nominations, and force the Control Yuan to grind to a halt? The President is not merely responsible for Control Yuan nominations. He is also responsible for grand justice nominations. If his nominees for grand justice are rejected, can he simply refuse to make new nominations? Are we to understand that presidential nominations are entirely a matter of presidential discretion? If so, then as long as the president refuses to make any nominations, are we to understand that the Control Yuan, the Examination Yuan, and the Judicial Yuan must grind to a halt? Are we really ready to make such an outrageous claim?

The opposition is not merely saying that the president may choose not to make any new nominations. It is saying that he "should not" make any new nominations. Is this not outrageous? Can the opposition force the president to lie or even violate the constitution? Could it be that a certain presidential candidate hopes to neuter the other three branches of government once she is elected, so that she may exercise dictatorial powers?

We say the president must fulfill his constitutional duty to make new nominations. He should nominate candidates who will increase the monitoring authority of the Control Yuan. Only then will he be honoring the original intent of the constitution. Current political sentiment would do away with the Control Yuan. This sentiment derives from three main sources.

The first source of opposition comes from opposition to the five-power constitution, hence opposition to the Control Yuan. These opponents see the Three Peoples Principles as more important than the constitution. They find it difficult to extricate themselves from their ideology. It is not necessary to devote too much ink to them.

The second source of opposition comes from the executive branch. The executive branch perceives close monitoring by the Control Yuan as a thorn in its side. It alleges that close monitoring by the Control Yuan makes civil servants shirk responsibility, leading to administrative inefficiency. The buck is passed on to the Control Yuan. Some say the Control Yuan persecutes the loyal and virtuous. They share this view. If the nomination process is shot through with such thinking, executive branch bureaucrats will circle the wagons, or even intentionally abet executive branch law-breaking. They will attempt to weaken the Control Yuan's monitoring function and interfere with the nomination process. Actually, the Control Yuan does not have the authority to pursue criminal complaints. Impeachment is the responsibility of the Judicial Yuan Correctional Court. How can the Control Yuan persecute the loyal and virtuous? Many outstanding Control Yuan members were not renominated this term. Did executive branch agencies hope to be rid of them? Was that truly not a factor? If nominees accomodate executive branch attempts to weaken Control Yuan monitoring authority, that is at odds with the original intent of the constitution. The head of state is supposed to have an overarching authority to nominate candidates.

The third source of opposition comes from those with high expectations. They feel the Control Yuan has performed poorly. Therefore it may as well be abolished. This is undoubtedly an argument rooted in emotion. According to this logic, if the legislature performs poorly, it too should be abolished. The real message behind the emotions is that the Control Yuan must perform better, and the nomination process must be effective. That will ensure the effectiveness of the Control Yuan, and win public support.

If the Control Yuan is to investigate violations of the law, it will need sufficient manpower. In particular, the Control Yuan is rather similar to national human rights institutions championed by the United Nations. This is especially true when the justice system fails to do its job. The Contro Yuan provides a valuable backup. This is what was missing in the first round nominations. Now that the president is making new nominations, that should be strengthened. He might wish to consider prosecutors with human rights backgrounds. He might wish to consider legal experts familiar with the functioning of the justice system. Previous term Control Yuan members had a wealth of such experience, but regrettably they were not renominated. They are worth re-considering.

The president must abide by the original intent of the constitution when nominating Control Yuan members. He must strengthen, not weaken its monitoring function. He must draw up a list of nominees satisfactory to all, and revive morale at the Control Yuan. The DPP must control its lust for power, and be willing to allow the president to fulfill his constitutional duty.


社論－總統有補提名監委的憲法義務
2014年08月19日 04:10
本報訊

立法院行使監委同意權，破天荒刷下了11位提名人選。接下來將如何進行？不但馬總統應該認真思考，民進黨更應該節制權力慾望。

首先應該確認，立法院同意權投票，採取嚴謹守法態度不許委員亮票，立法委員跨越黨派嚴格把關，刷下被認為不適任的人選，都是符合憲政精神的正確做法。還應該說清楚的是，提名人選如果不能盡如人意，執政黨立委不該只是因為身為執政黨員，就不問青紅皂白，一味投票表示同意；相對而言，被提名的也非完全不適任，在野黨立委同樣不該只是黨同伐異，為了反對而反對。如果政黨心目中都是有黨無憲，只圖政黨利益，只管政黨鬥爭，不依憲法行事，那還有什麼民主憲政可言？

執政黨行事不合憲法的時候，在野黨最應該做的，是根據憲法要求執政黨依憲行事，而不是主張執政黨背離憲法。現在立法院難得地發揮了同意權的制衡功能，篩選之餘，監委尚有11個席位待補，在野黨竟然主張總統不該補提名，將機會留給下一任的總統兩年之後再為提名。這話真是荒唐，可謂是目無憲法，赤裸裸地覬覦權力，已達無以復加的程度！

我們必須問一個憲法問題，此時總統難道沒有補提人選的憲法義務？如說沒有，未免過於輕率。要是立法院不同意所有的提名人選，總統也可以不補提名，讓監察院停擺嗎？由總統負責提名的不只有監察院，如果大法官多人提名人選不通過，也可以不補提名嗎？難道是認為提不提名全屬總統的裁量？那豈非只要總統不為提名，從監察院到考試院到司法院，都有被總統任意不為提名而停擺的風險？能夠如此信口開河嗎？

在野黨現在不但是說總統可以不提名，甚至說成「不應該」提名，難道不是信口開河？哪有在野黨教唆甚或強迫總統違憲的道理？該不會是想選總統的人，企圖在當選之後不依憲法提名，以實質廢除其他三院，享有獨裁大權吧？

我們主張，總統不但應該履行憲法義務補行提名，而且應該朝強化監察權功能的方向選擇提名人選，才能符合憲法的真意旨。不可諱言，現在政壇上瀰漫著一種對於監察院的存在不以為然的氣氛，主要是由三方面的心態所共同形成的。

第一種心態是因為反對五權憲法而反對監察權，這種將三民主義看得比憲法更大，以致難以自拔的意識型態反應，其實不必多費筆墨論其非了。

第二種心態，則是基於行政權本位，將監察院有效行使糾彈視為芒刺在背，而把公務員們遇事推諉、不敢負責以致行政效能不彰的原因，一籃子推到監察院身上。有人好說監察院殘害忠良，就與此種心態不無關係；如果提名的過程中具有這種心態，就會出現一些行政官僚體系本位立場濃厚，或有意包庇行政違法、弱化監察功能的人干擾提名。其實監察院並不行使刑事訴追的權力，行彈劾又還有司法院的公懲會把關，何足以殘害忠良？前一屆監委表現卓越者未獲提名連任者不乏其人，難道就沒有行政部門欲除之而後快的因素存在？提名者若只遷就於行政部門削弱監察權的心思行事，並不符合憲法看重元首的超然而賦予提名權的原旨。

第三種心態則是恨鐵不成鋼，以為監察院的表現不足，還不如廢除。這無疑是鬥氣的說法；依此邏輯，立法院功能不彰就要廢掉立法院嗎？鬥氣說背後所傳達的真正訊息，其實是期待監察院高度發揮功能。提名得力，就是監察院發揮功能的保障，就會得到社會支持。

監察院職司糾彈違法，應有數量充足的法律人才，尤其監察院與聯合國提倡的國家人權機關，性質上有極其相近之處，對於保障人權的不足，特別是司法功能在這方面的不到之處，值得特加重視其間的補佚作用。這正是第一份提名名單欠缺的地方。現在總統將要補行提名，應該於此有所加強，可以考慮具有保障人權觀念的檢察官，也可以考慮熟悉司法運作實務乃至缺失的法界人士，前屆表現出色富有經驗但成為前次提名的遺珠之憾者，亦值得重新列入考慮。

總統應該依照憲法的意旨補為監察委員提名，而且應該朝向切實發揮而非削弱監察糾彈不法的功能為主要著眼，拿出一張普遍令人滿意的名單，切實重振監察院低迷的士氣才是。民進黨則應該節制權力慾望，對總統履行憲法義務樂觀其成。