China Times Editorial (Taipei, Taiwan, ROC)
A Translation
October 18, 2016
Executive Summary: If Ms. Tsai clearly distinguishes between her roles as president and chairman, if she clearly separates her duties of president and chairman, if she adheres strictly to the law, cross-Strait official interaction is possible. President Tsai's priority must be to sort out the relationship between party and government. The government is the government. The party is the party. She must use both to achieve the best results. This is the art of politics. Can she succeed? That is up to her.
Full Text Below:
The Presidential Office “Policy Coordination Committee” will convene in the evening after work in order to avoid objections that it is unconstitutional. But we have to ask, if something is unconstitutional during working hours, does it suddenly become constitutional after working hours?
President Tsai and the Lin Chuan cabinet have been beset by internal and external problems since inauguration. The president's reforms have backfired and are now in limbo. The cabinet has lost control of command and communications. Local power brokers rule, doing as they wish. Public support for the two has plummeted. President Tsai wants a coordination mechanism for the Presidential Office, the Executive Yuan, the DPP, the DPP think tank, and for central and local governments. She hopes to integrate the party with the government, the executive with the legislative, even at the local level, in order to ensure smooth governance. Her swift action has raised concerns that the party is no longer distinct from the government, and that the president now wields unconstitutional authority. Even Hsu Chong-li, the president's own nominee for Judicial Yuan president, warned that the president's committee "warrants closer examination”, and pressured President Tsai to make changes.
Actually, for the President to convene such meetings is not without precedent. The Chen era nine-man group and the Ma era five-man group also provoked controversy. Clearly the seventh amendment to the Constitution has led to a clash between government operations and the constitutional framework. The president is directly elected by the people and must answer to them. He or she must assume responsibility for the conduct of government affairs. But the Constitution also stipulates that the premier is the chief executive. In theory, the president may not interfere in the administration of affairs other than diplomacy, defense, and cross-Strait relations. Confusion of authority and responsibility has forced the president to rely on personal influence to implement government policy.
The Policy Coordination Committee established by President Tsai is even more constitutionally questionable, due to its wider scope. President Tsai has included the premier, the chief convener of the ruling party, the secretary-general of the ruling party, the head of the DPP think tank, and even the ruling party county chiefs and city mayors on her committee. The president has in effect personally assumed control over the executive branch, the legislative branch, even party affairs and local affairs. This already undermines checks and balances between the executive and the legislature, and rides roughshod over local government autonomy.
Meeting after normal office hours does nothing to reduce constitutional controversy. The reason is simple. The problem lies in the constitutional status of the president and members of the committee. It has nothing to do with working hours. Every political office within the political system has its own unique status, requiring a particular pattern of political conduct. This is true for the president, for the premier, for the chief party convener, for county chiefs, for city mayors, and for think tank heads. How can constitutional checks and balances work if the president tells the premier and the Legislative Yuan which bills to pass? Is the Republic of China still a nation governed by a constitution, or not? No wonder Hsu Chong-li was taken aback.
However, a solution is available. The DPP is the ruling party. It controls over half the seats in the legislature. It controls over half the county and municipal governments. If it wishes to, a DPP coordination mechanism would enjoy far greater legitimacy. DPP legislators, DPP county chiefs, and DPP city mayors, are all members of the Democratic Progressive Party. Naturally they must obey DPP resolutions and participate in DPP policy coordination. The premier is appointed by the president. Even if the premier himself is not a DPP member, his participation in a DPP policy meeting is required. If President Tsai, in her capacity as DPP Chairman, held a similar Policy Coordination Committee meeting within the confines of the Democratic Progressive Party or the DPP think tank, she could avoid constitutional controversy. The DPP is a private sector entity. It wields no government authority. Its resolutions are neither law nor executive orders. Its activities can be regarded as mere coordination, and need not provoke constitutional concerns.
President Tsai must distinguish between her role as president and her role as party chairman. She must diligently distinguish party from government. She must prevent the party from prevailing over the government. In particular she must avoid the impression that the party is ruling the nation. The president is a public official, responsible to the constitution and the people as a whole. Her words and deeds must conform to the constitution and to the law. Policies promoted in her capacity as president must comply with the constitutional framework. As chairman of the DPP, she must be responsible for all DPP members. Their words and deeds must also comply with the Constitution. When conflicts between her two identities arise, Ms. Tsai must remind herself which is which. If she is president, she must consider the interests of the nation as a whole. She must not obey the party at the expense of the constitutional order. In her capacity as president, the nature of her relationship is that of “government vs. opposition party” and “Presidential Office vs. Executive Yuan and Legislative Yuan” In her capacity as party chairman, the nature of her relationship is that of “ruling party vs. opposition party”. The former relationship is one of listening and respect. The latter relationship is one of partisan rivalry.
As for cross-Strait relations, the separation of party and government also facilitates the resolution of impasses. President Tsai must abide by the Constitution and the law. Therefore she has repeatedly declared that cross-Strait relations must be handled in accordance with the Constitution of the Republic of China and the Act Governing Relations between the People of the Taiwan Area and the Mainland Area. But the DPP adheres to its Taiwan Independence Party Platform and advocates Taiwan independence. Therefore the Mainland remains skeptical about the DPP government. This makes the restoration of cross-Strait official relations difficult.
If Ms. Tsai clearly distinguishes between her roles as president and chairman, if she clearly separates her duties of president and chairman, if she adheres strictly to the law, cross-Strait official interaction is possible. President Tsai's priority must be to sort out the relationship between party and government. The government is the government. The party is the party. She must use both to achieve the best results.
This is the art of politics. Can she succeed? That is up to her.
讓總統的歸總統 主席的歸主席
2016/10/18 中國時報
總統府決定將「執政決策協調會議」改到晚間下班後舉行，希望藉此避免違憲疑慮。我們不禁要問，如果上班時違憲，下班後就不違憲了嗎？
蔡總統及林全內閣就任以來，內外問題叢生，總統各項改革不是反彈四起，就是動彈不得，內閣縱向指揮與橫向聯繫都螺絲掉滿地，地方諸侯坐大，各行其是，兩人民意支持度快速下墜。蔡總統決建立府、院、黨、智庫及中央地方協調機制，希望快速整合黨與政、行政與立法及地方意見，順暢推動政務。實施以來決策果斷迅速，卻遭到遭外界質疑，認為黨政不分、總統擴權，有違憲之虞。司法院院長被提名人許宗力在立法院應詢時也認為，總統召集這樣的會議「值得進一步考慮」，迫使蔡總統做出一些技術性調整。
其實總統召集類似會議並非沒有前例，扁時代的九人小組及馬政府時期的五人小組，同樣也都存在爭議。顯見憲法第七次增修條文已造成國政運作與憲政體制的扞格，總統經由全民直選，背負全民期待，必須為政務的有效推動負起責任，但憲法又規定行政院長才是最高行政首長，理論上總統不應干預除外交、國防和兩岸事務以外的政務。權責的錯位迫使總統必須依賴實質影響力干預行政工作。
即便如此，蔡總統成立的協調會議，由於參與人員更廣，逾越憲政分際的問題就更嚴重。蔡總統不僅納入行政院長和執政黨黨團總召、執政黨祕書長、智庫執行長，連執政直轄市長都成為與會成員，等於總統親自站上行政立法乃至黨務、地方事務的第一線，已悖離了行政立法的制衡法則，及地方自治的分權關係。
縱然改到下班後舉行，並不能因此降低違憲爭議，理由很簡單，違憲疑慮是因為總統與會議成員的憲法身分扞格而起，與是否上班身分無關。每一個政治職務在政治系統中，有不同的政治地位，每一政治地位都有一定的政治行為模式，總統如此，閣揆、黨團總召、院轄市長、智庫董事長亦然。試問，如果可以允許總統指揮閣揆與立法院黨團通過法案，憲法的制衡關係不是蕩然無存嗎？台灣還是憲政主義國家嗎？難怪許宗力對此亦不以為然。
不過，這也並非沒有解決辦法，民進黨是執政黨，國會議席過半，且在地方過半數的縣市執政，若要建構協調機制，民進黨的平台更具法理的正當性。無論立法委員還是綠營縣市首長，都是民進黨員，自然有服從民進黨決議和參與民進黨政策協調的義務。行政院長由總統任命，即便院長本人未必是民進黨員，但列席民進黨的政策會議也有其必要。蔡總統若能以蔡主席的身分，在民進黨內或者民進黨智庫召開類似協調會議，就完全能夠避免憲政爭議。更重要的是，民進黨屬於民間社團，沒有公權力，形成的決議不能直接成為法律和行政命令，只能視為協調機制而不會有超越憲法的嫌疑。
蔡總統所應為，是區分自己總統與黨主席的身分，做好黨政分立，避免在實踐中讓黨凌駕於政府，特別是要避免黨天下的嫌疑。總統屬於公職，要對憲法及全體人民負責，言行必須符合憲法和法律，以總統身分推動的政務，必須符合憲政體制。身為民進黨主席，則需向全體民進黨員負責，其言行也要受黨章的約束。當兩者身分發生衝突時，蔡女士應意識到自己當時是總統身分或主席身分。如果是總統身分，就必須以全民利益為考量，不能為了服從黨意而不惜違背憲政秩序。以總統身分，就是政府與反對黨的關係、總統與閣揆及立法院的關係；以黨主席身分，則變成了執政黨與在野黨的關係。前者首重傾聽與尊重，後者才是競爭關係。
至於兩岸關係，黨政分立也可以為僵局的解套創造空間。既然蔡總統要遵守憲法和法律，她也多次宣示要按照《中華民國憲法》和《兩岸人民關係條例》來處理兩岸事務，其實這與馬政府的立場並無二致。不過，由於民進黨堅持《台獨黨綱》和台獨主張，大陸對民進黨政府的疑慮日深，兩岸官方難以恢復互動關係。
如果蔡女士分清楚自己的總統與主席身分，據此區隔總統與主席的職務行為，並堅持依法行政，兩岸官方互動的糾結並非沒有機會化解。蔡總統的當務之急就是理順黨政關係，政府歸政府，黨歸黨，善用各自不同的功能，以期達到最大的執政績效。
這是政治的藝術，能不能做好，考驗蔡總統的智慧。
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