Commemorate the Constitution. Close Constitutional Loopholes

Commemorate the Constitution. Close Constitutional Loopholes
China Times editorial (Taipei, Taiwan, ROC)
A Translation
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.
   
中時電子報 新聞
中國時報 　2012.12.25
社論－紀念行憲，請速立法堵住憲政漏洞
本報訊

    　當前民眾多自豪於台灣的自由民主，殊不知我們的憲政仍未納上正軌。立法堵住憲政漏洞，是我們在行憲紀念日最沉重、最莊嚴的呼籲。

    　一九四六年制訂的《中華民國憲法》，實現了當時執政黨中國國民黨的制憲承諾，但卻由在野的立憲派傳人張君勱起草，由含有中共代表的「憲草審議委員會」通過草案，再交由含台灣代表在內的制憲國民大會通過，成為正式憲法。張氏的精心設計，使憲法保留「五權憲法」的五院架構，但依內閣制原理安排總統、政院及立院關係，成為既有中國特色、又合憲政標準的憲法。可惜執政者從未奉憲法為圭臬，以致憲政運作仍不合憲法規範，憲法尊嚴和權威也始終難立。

    　行憲伊始，蔣中正便以動員戡亂為由，由國民大會藉修憲程序通過《臨時條款》擴張總統權力，破壞憲法規定的內閣制體制。李、扁主政時，又因不認同憲法的台獨立場推動了七次修憲，把憲法規定的問責機制修到難以運作，總統卻獨攬大權不受監督。同時，獨派人物更不斷汙衊、扭曲憲法，使其幾成告朔餼羊。

    　憲法是國家的根本。如果憲法失去規範效力，則政府公權力運作和朝野政治衝突皆失去判斷是非標準，人民的自由和福祉終將難保。眼前政治亂象，皆因憲法失其權威所致。我們若想保住憲政生機、培養憲法權威，掃除亂政，首需駁斥幾種流行謬論。

    　首先，中華民國憲法制訂之時，台灣十八名國大代表皆赴南京出席制憲國大。此事載諸當時報紙及會議紀錄，所謂「台灣人沒參與制憲」純屬謊言。還有人說「制憲國大代表缺乏民意基礎」，請看美國一七八七年「制憲會議」的代表亦未獲授權，日本戰後憲法甚至是由麥帥總部起草交付通過，何以都能有效？

    　其次，憲法制訂必有折衷妥協之處。只要基本架構合乎憲政學理，就是好憲法。中華民國憲法既是黨派協商結果，自亦有妥協痕跡。但其內閣制架構合乎民主憲政標準；將中國傳統針對「人」的兩權（考試、監察）與西方傳入針對「事」的三權（行政、立法、司法）結合，自有其深意。依據學理，此憲法絕非不可行，它應可藉憲政慣例和憲法解釋而成長，豈可僅因制憲時某些技術性妥協便汙衊它為拼湊而成？至於扁以現任總統身分詆毀憲法為「烏魯木齊」，更是公然違反其「遵守憲法」之就職宣誓，早應「受國家嚴厲之制裁」。

    　肯定憲法效力後，我們還要糾正目前違憲亂象。由於現行修憲門檻高不可攀，未來修憲提案勢必是龐雜的包裹修憲，只會治絲益棼。我們必須尋求修憲以外途徑，使政治回歸憲政常軌。

    　歷經七次修憲，憲法第五十三條「行政院為國家最高行政機關」及第五十七條「行政院…對立法院負責」之規定並未修改。總統既然不在「最高行政機關」（行政院）之下，自不應擁行政實權，現行體制應仍是內閣制。李、扁兩總統所以大權在握，是利用憲法漏洞所致，並非憲法授權。本此，我們鄭重建議制定《總統職權行使法》，用以堵住憲法漏洞，使憲政運作步上正軌。

    　該法首應對總統行使提名權加以規範。例如：閣揆應是立院多數可接受之人選，並應向立院報告政見，經立院信任投票通過後始得任命；監察委員、考試委員、大法官、檢察總長之資格及提名程序亦應明訂，且不應有政黨考慮；總統更不應怠於行使提名權，導致憲政機關無法運作。其次，該法亦可規定彈劾總統之發起要件，及總統若違憲亂政，經彈劾去職或任滿後之刑罰，以落實憲法所謂「國家嚴厲之制裁」。

    　最後，國安會和國安局為《臨時條款》殘留物，卻成總統干政「利器」。既然《增修條文》對此二機關之規定是「得設」，則立院自可收回授權，廢除其組織法，使該權力回歸行政院。若一時難行，亦應遵守憲法內閣制精神，修改其組織，使閣揆藉副署權之行使成為兩機關實質領導者。往後有志領導國家者，應投身立院，爭取閣揆，使行政、立法兩院成為國事決策中心。

    　陳水扁執政八年，證明野心家大可利用憲法漏洞胡作非為。檢討憲政、推動修憲原是馬總統競選政見，現修憲既不可行，馬應抓緊時間，推動相關立法，堵住憲法漏洞。否則若再有類似扁者當選總統，行憲紀念日遲早將成行憲悼念日。