Tsai Ing-wen Is Exceeding Her Constitutional Authority

Tsai Ing-wen Is Exceeding Her Constitutional Authority 
United Daily News Editorial (Taipei, Taiwan, ROC) 
A Translation 
August 17, 2016

Executive Summary: Tsai Ing-wen, having withdrawn her nominations for the Judicial Yuan, has appointed herself “Chief Convener” of a "National  Conference on Judicial Reform", and will personally take charge of judicial reform. This has provoked condemnation by judges, who say that for a president to exceed her authority and interfere with the judiciary in this manner, amounts to "imperial rule".

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Tsai Ing-wen, having withdrawn her nominations for the Judicial Yuan, has appointed herself “Chief Convener” of a "National  Conference on Judicial Reform", and will personally take charge of judicial reform. This has provoked condemnation by judges, who say that for a president to exceed her authority and interfere with the judiciary in this manner, amounts to "imperial rule". Prosecutor Eric Chen, Chairman of the Prosecutorial Reform Committee, urged the President to desist from convening any “National Conference on Judicial Reform”, and allow the Legislative Yuan to debate what must be done to reform the judiciary.

Why is Tsai Ing-wen in such a panic? Presumably she is concerned about the precipitous decline in her approval ratings. She probably wants to take charge of legal reforms in order to win back hearts and minds. But the more panicky her behavior, the more her government reveals its confusion, and the more likely she is to create chaos. Three months ago, Tsai Ing-wen won the presidency with a 56% majority. Today however, she is being accused of instituting “imperial rule”. She probably finds this hard to swallow. But has President Tsai forgotten her own admonition: “Humility, humility, and more humility”. If she has not, she will find that her new government is anything but humble.

The new government has been in power for three months. With the exception of several "apologize, apologize, and apologize again" rituals, not much has changed. The Tsai government has sharpened its knives in preparation for "Transitional Justice" and "Judicial Reform". But all that has come out of it is hasty and sloppy legislation. Worse still, the Presidential Office and the Executive Yuan have established unconstitutional bodies in utter disregard of legal procedure, and total indifference to public perception. President Tsai Ing-wen may feel a powerful sense of commitment. But a president after all, is not an emperor. She must still abide by the separation of powers.

Take the Special Investigation Division for example. Merely because a single green camp legislator called for its abolition, Minister of Justice Chiu Tai-san immediately obliged. He did not even bother to wait for the legislature to debate and amend the law before announcing an abolition date. What is this, but the abuse of executive power? A closer look reveals that abolishing the Special Investigation Division was not Chiu Tai-san's personal wish. He was merely currying favor with the President. If that was the case, then Tsai Ing-wen was effectively granting Chen Shui-bian a “pardon in disguise”. Chen Shui-bian has already been granted "medical parole". Now that the Special Investigation Division has been abolished, the charges that have yet to be filed against him have already been wiped clean? Just how many political sleights of hand have been hidden beneath the label of “judicial reform”?

Consider the “recovery of illicit KMT party assets” for example. Several provisions of the law are clearly questionable. Establishing an agency under the Executive Yuan is highly inappropriate. The DPP however, ignored this. It used its majority to ram the bill through the legislature. Compare the behavior of the DPP to that of the KMT. Which has behaved in a more civilized manner? Nor was that all. President Tsai appointed the politically biased Ku Li-hsiung Chairman of the "Illicit Party Assets Handling Committee". She made no bones about the entire process being motivated by revenge, and that the end justified the means. Do such cheap, crude power games have anything to do with transitional justice?

Abolishing the Special Investigation Division and recovering KMT party assets reflect the expansion of executive power. The two differ only in degree. The President has appointed herself “Chief Convener” of the "National  Conference on Judicial Reform". This amounts to an even more flagrant exceeding of executive authority. The Constitution separates the powers of government into five branches. The President of the Republic of China may nominate the President of the Judicial Yuan and the President of the Examination Yuan. But the President may not interfere with the administration of justice. Tsai Ing-wen is determined to take charge of judicial reform. But she has drawn fire from the legal world for "imperial rule", because she exceeded her powers as executive. President Tsai may have an intense desire to promote judicial reform. But any such reforms must be consistent with the Constitution and the law. Only then can her nominations win public trust. She must appoint people trusted by the legal world to the Judicial Yuan, instead of diving into the water and appointing herself judicial reformer. One may be filled with reformist zeal. But if one fails to understand the limits of power, one poses a severe danger to the nation.

Even executive authority is divided between the President and the Premier. Coordination between the Presidential Office, the Executive Yuan, and the ruling party has been lacking. As a result, President Tsai has frequently exceeded her authority. She has interfered with the duties of the Premier and Ministers. For example, the Investment Commission has just issued a deadline for Uber divestment. The Presidential Office and the Executive Yuan immediately slammed on the brakes. The Ministry of Labor implemented a policy of "one day off for every seven days worked". President Tsai immediately issued a solemn promise of "two-day weekends" These missteps have left the pubic at a loss. They have left officials incapable of formulating policy. The new government has stumbled badly. It has blundered repeatedly. Much of the problem lies here.

President Tsai may genuinely want reform. Observers see this. But in the short time she has spread herself too thin. She lacks the manpower and the drive to follow through. She may be eager to achieve her goals. But she has ridden roughshod over due process. She has exceeded her authority, and has raised constitutional concerns.

聯合／蔡英文正走向不當擴權之路
2016-08-17 05:48 聯合報 聯合報社論

在撤回謝文定的司法院長提名後，蔡英文總統宣布自己將出任「司改國是會議」召集人，親自領導司法改革。此舉旋即招致法官批評，認為總統把手伸入司法，無異已形同「帝制」。檢改會檢察官陳瑞仁更呼籲，總統應停止召開司改國是會議，讓司改議題回到立法院進行民主討論。

蔡英文如此操切，想必是見到近來民意支持度大幅滑落，想親自領導司法改革以收復民心。但越是如此操切，越顯示蔡政府已方寸大亂，也越可能鑄下大亂。蔡英文三個月前方挾五成六的高得票聲勢登上總統寶座，如今突然一頂「帝制」的大帽套在自己頭上，她恐怕難以接受。但蔡總統如果還記得自己「謙卑、謙卑、再謙卑」的叮嚀，她會發現新政府的作為，距離謙卑其實已越來越遠。

回顧新政府執政這三個月，除了幾場「道歉、再道歉」的儀式外，其實未帶給人民太多耳目一新的感受。另一方面，一些以「轉型正義」和「改革」為名的行動則磨刀霍霍，但只見倉促而草率的立法，更在總統府和行政院底下任意增設違建機構，全然不顧程序正義和社會觀瞻。這些，也許出自蔡英文對總統一職的強烈使命感，但無論如何，總統不是皇帝，她仍有權力分立及權力制衡的界線必須遵守。

以特偵組為例，僅因一名綠委提案要求廢除，法務部長邱太三立即跟進附和，且不待立法討論修正，即逕自宣布廢除日期。這種踰越的作法，不是行政濫權是什麼？仔細分析，廢特偵組未必是邱太三個人的意志專擅，而是奉承總統的命令行事；倘果真如此，將此舉解讀為蔡英文變相「特赦」陳水扁，其實並不為過。因為，所有因陳水扁「保外就醫」而未能辦完的案件，即可隨特偵組之廢而一筆勾銷。試想，在司法改革的美名下，可以隱藏多少政治操作？

以國民黨不當黨產的處理為例，該條例中分明有數個條文頗待商榷，機構設在行政院也極不恰當；民進黨卻不顧一切動用席次優勢強行通過，這比起國民黨執政時的表現有更文明嗎？不僅如此，蔡總統更任意欽點政治色彩濃厚的顧立雄出任「不當黨產處理委員會」之主委，表明了此事只問目的、不擇手段。試問，人間的轉型正義，能以如此廉價而粗暴的手段實現嗎？

廢特偵組與追討黨產，都反映了不同程度的行政擴權；而總統自命為司法改革會議召集人，則更是赤裸裸的行政侵權。依憲法五權分立原則，中華民國總統雖可提名司法、考試等院長，卻不表示總統可以干預司法。蔡英文有意主導司法改革，引發司法界的「帝制」之譏，原因即在於此，因為她企圖以行政權踰越司法權。蔡總統改革司法的使命感也許十分強烈，但她應有的改革方式，是提名她所信賴、也為司法界所信賴的人出任司法院長，來幫她推動改革，而不是自己跳下海去擔任改革舵手。一個不知道自己權力界線何在的國家元首，就算滿腔改革理想，也是危險的。

事實上，即使只論行政權，總統和行政院長之間也有傳統的分工領域。然而，由於新政府在府、院、黨間的磨合並不十分順利，外界也頻頻看到蔡總統急切撈過界插手閣揆乃至部會職權的情事。例如，投審會剛剛對Uber下達限期撤資令，府院馬上跳出來踩煞車；勞動部作出「七休一」的決策，蔡總統隨即發表「周休二日」的嚴正聲明。凡此種種，不僅讓民眾無所適從，更導致官員在決策上顯得瞻顧失據。新政府政績欠佳，失誤連連，其實與此息息相關。

蔡總統確有改革之心，這點外界看得出來；問題是她在短短時間內開闢了太多戰線，在人力和心力上似乎左支右絀，難以應付。更嚴重的是，她為了急於達成目標，卻放任粗糙的手段跨越正當程序；不當擴權，正是憲政隱憂。