Wednesday, April 20, 2011

Severe Test of Constitutionality of Combined Elections

Severe Test of Constitutionality of Combined Elections
China Times editorial (Taipei, Taiwan, ROC)
A Translation
April 21, 2011

As expected, the Central Election Commission has reached a decision. It has confirmed that the 2012 presidential and legislative elections will be combined. The DPP is making a great show of denouncing the decision. In fact it is only too happy with the result. For the first time in the Republic of China's history, the presidential and legislative elections will be combined. This will affect how the ruling and opposition parties mobilize. This may lead to constitutional crisis next year.

The Central Election Commission has decided to combine the elections, mainly because combined elections save money. Voters will no longer need to trudge down to the polls twice in two months. This will reduce the need for political mobilization, and avoid unnecessary friction. These are real advantages that can be gained by combining elections. According to a poll commissioned by the Ministry of the Interior, 60% of the public favors combining elections.

Elections are held on Taiwan every year. They upset the public. Political insiders are concerned as well. Short-term electoral pressures encourage populism, and make it impossible for the administration and legislature to engage in rational policy making and debate. Take tax policy for military personnel, civil servants, and public sector school teachers. The policy underwent years of planning. But each time election season came around, the process came to a screeching halt. It was only finalized last year. Former Director of Health Insurance Yang Chi-liang's attempts to implement second generation health care were repeatedly frustrated, He was so angry he declared that the biggest problem on Taiwan was annual elections.

The Central Election Commission has decided to combine elections. The Ma administration says it will promote additional reforms simplifying and combining elections. In principle, elections will take place once every two years. The first will be a central government election. The second will be a local level election. Seven elections were scheduled for 2014. They will be reduced to two. There is nothing wrong with this general direction. But lest we forget, four years ago the Chen administration made the same proposal. It failed to pass. The reason was that the DPP presidential candidate wanted to form alliances with local KMT factions. As a result, they finally decided to hold separate elections. Currently the ruling party is pushing for combined elections. It may have far-sighted ideals. But it is rushing the measure through the system. The necessary ancillary measures have not been considered. This is probably the result of election considerations.

The real reason however, is that the KMT was too successful during the previous legislative elections. It won over two thirds of the seats. By contrast, during the municipal elections and legislative by-elections two years ago, the KMT lost repeatedly. Disaffected Blue Camp voters stayed away from the polls in droves. Combined elections may increase voter turnout. They may prevent the KMT's presidential candidate from being dragged down, in the event KMT legislators suffer a defeat just before the presidential election. The KMT has been careful in its calculations. The DPP has feigned outrage at the KMT. In fact the DPP is highly adept at coordinated electioneering. The presidential election may help DPP legislative candidates increase their visibility. It may help the DPP win an absolute majority in the legislature.

The two parties conspired with each other. They deliberately ignored important institutional considerations. First, four months separate the presidential election and the inauguration. Central Election Commission Chairman Chang Po-ya said that the constitution and the law are clear on how the government must operate. Even a change in ruling parties is not going to lead to a constitutional crisis, to a lame duck in the presidential palace. Can a caretaker government that respects the Constitution respond to a sudden crisis that might occur at any moment under globalization? These include new strains of influenza, inflation, and financial crises. People are extremely skeptical. Never mind that two ruling party changes led to caretaker governments meddling in personnel appointments, and the destruction of official documents. If a government that does not respect the constitution, is permitted to act as a caretaker for up to four months, the risks to the nation will be inestimable.

In fact, this four month lame duck period is more than a crisis management problem. It also affects the constitutional process. According to the constitution, the cabinet must resign before the opening session of the new legislature on February 1. The president must re-nominate the premier. If President Ma successfully wins reelection, and the KMT maintains an absolute majority in the legislature, the problem will be relatively simple. But suppose President Ma fails to win reelection? Even if the KMT maintains an absolute majority in the legislature, the cabinet would have to resign, in accordance with established precedent. Would the outgoing president still have the authority to nominate a new cabinet?

Suppose the outgoing president wants to leave the decision to the incoming president. He might refer to another constitutional precedent. In January 2008, the DPP was routed in the legislative election. In accordance with constitutional precedent, Chang Chun-hsiung's cabinet resigned. But then president Chen Shui-bian refused to accept their resignations. He offered five reason why he was not constitutionally obligated to accept their resignations. He attempted to establish a new constitutional precedent. But at the time a new president had yet to be elected. The president still had the right to turn down cabinet resignations. By contrast, when the new legislature takes office in 2012, a new president will already have been elected. Wil the defeated outgoing president still have the authority to turn down cabinet resignations? These are slippery constitutional questions. Never mind what would happen if the KMT lost both the presidential and legislative elections. The government might well find itself idled for four months.

Consider current developments. We lack a complete set of ancillary measures. The presidential and legislative elections must be combined. But the ruling and opposition parties are locking the barn door after the horse has been stolen. They have aggressively promoted the "Bill for the Transfer of Presidential and Vice Presidential Authority" in the legislature. Its provisions cover currently serving presidents who failed to win reelection, and cabinet officials who have not been reappointed. These lame ducks may not make civil service appointments. They must freeze all major policies. But this is not the root of the problem. The ruling and opposition parties must communicate and consult with each other. They must seek consensus. They must deliberate on whether to amend the constitution. They must resolve the problems created by the combined elections and the lame duck period.

2011-04-21 中國時報










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