Commemorate the Constitution. Close Constitutional Loopholes
China Times editorial (Taipei, Taiwan, ROC)
A Translation
December 25, 2012

Summary:

Full Text below:

    People are proud of the Republic of China's freedom and democracy.
But at the same time, everyone knows that our system of constitutional rule is still not on the right track.
Pass legislation to block constitutional loopholes.
We make this solemn appeal to the legislature on Constitution Day.

    The Constitution of the Republic of China as of 1946,
included a commitment by the then ruling Chinese Nationalist Party to author a constitution.
Chang Chun-mai, an opposition constitutionalist faction leader drafted the document.  
It includes a draft approved by the Chinese Communist Party's "Draft Constitution Review Committee."
It was then referred to
the Constituent National Assembly, including representatives of Taiwan, at which point it officially became the Constitution.
Chang was carefule.
The Constitution retained the five branch framework of the "five-power constitution."
The cabinet system specifies 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 ruling administrations never treated the Constitution as a standard.
As a result constitutional practice still 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 invoked the Communist Rebellion.
He cited it as reason to have the National Assembly amend the Constitution, granting him expanded presidential 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 rose to power they forced through seven pro-Taiwan independence amendments.
The system of constitutional rule went out the window.
The president acquired unchecked power.
Pro-Taiwan independence elements relentlessly defamed and distorted the Constitution, virtually turning it into a sacrificial lamb.

    A Constitution is fundamental to a nation.
If its constitution loses ot normative force,
the exercise of governmental authority and political conflict between the ruling and opposition political parties are deprived of all standards for right and wrong.
The freedom and well-being of the people will eventually be jeopardized.
Political chaos will follow.
As a result the constitution has lost its authority.
If we wish to preserve the constitution,
enhance the authority of the Constitution,
sweep away political chaos.
we first need to refute several popular fallacies.

    First, when the Constitution of the Republic of China was authored,  
18 National Assembly Members went to Nanjing to attend the Constituent National Assembly.
This event was clearly recorded in various newspapers and minutes of meetings of the time.
The allegation that "Taiwanese never participated in the authoriing of the Constitution" is a bald-faced lie.
Others say the "Constituent National Assembly lacked a popular mandate."
We invite them to consider the representatives of the Constitutional Convention of 1787, who were not authorized by the public to author a constitution.
Japan's postwar constitution was drafted by General Douglas MacArthur's headquarters and delivered to the Japanese, who approved it.
Why are they considered authoritative?

    Secondly, the drafting of a Constitution requires compromises.
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 party negotiations.
It too contains compromises.
The cabinet system accords with democratic constitutional standards.
Two traditional Chinese powers (examination and control)
were combined with three Western powers (executive, legislative and judicial). 
This has real meaning.
From a theoretical perspective,
this is a perfectly workable constitution.
It should be able to grow based on constitutional precedents and constitutional interpretations.
It can hardly be dismissed as a "patchwork quilt" merely because of some technical compromises during its drafting.
When Chen Shui-bian was president, he denounced the Constitution as "Urumqi," as oppressive to Taiwanese.
This was an even more flagrant violation of his oath of office to abide by the Constitution. 
If truth be told, he should have been subjected to severe punishment long ago.

    Certainly after the constitutional validity
We would also like to correct the the current unconstitutional chaos.
The current constitutional amendment threshold unattainable
Future constitutional amendment proposal is bound to be numerous parcels constitutional amendment
Only Zhisiyifen.
We must seek ways constitutional amendment outside
Political return to the constitutional on track.

    After seven constitutional amendments
Article 53 of the Constitution, "the Executive Yuan for the country's highest administrative organ
And Article 57 of the "Executive Yuan ... is responsible to the Legislative Yuan" has not been modified.
Since the president is not under the "highest administrative authority" (Executive Yuan)
Self should not be owned by the executive powers,
The current system should remain a cabinet system.
Lee, flat two presidential so powerful,
Is the due Constitution vulnerability,
Not a constitutional mandate.
This, we solemnly recommended the development of the exercise of the powers of the presidency Law
Used to block the constitution vulnerability
Constitutional operation on track.

    The law is the first response to the president to regulate the exercise of the right to nominate.
For example: the head of the cabinet should be the most acceptable candidate for the Legislative Yuan,
And shall legislative report on political views,
Legislative trust vote by appointment before they may;
Monitors
Examiner
Justice, the Attorney-General of the qualifications and nomination procedures should express
Without due political party to consider;
The President more should not be delayed in exercising the right to nominate,
The constitutional organs do not work.
Second, the law may also require the elements of the impeachment of the president of the initiated,
And the President unconstitutional political chaos,
Left office by impeachment or any penalty after full
To the implementation of the Constitution, the so-called "national severe punishment.

    Finally, the National Security Council and the National Security Bureau, the residue of the "Temporary Provisions
But as President Intervention "weapon".
Since the Additional Articles of this two organs of the provisions of "may establish"
The Legislative Yuan since recoverable authorized
Repeal its Organic Law,
The power to go back to the Executive Yuan.
If the moment difficult,
Should also abide by the Constitution to the spirit of the cabinet system,
Alter its
Premier borrow countersign the exercise of the right to become the real leader of the two organs.
Back aspiring to lead the country,
Should join the Legislative Yuan,
Fight for premier
The administration, both houses of the legislature to become affairs of state decision-making center.

    Chen Shui-bian in power for eight years
Prove careerist can make use of a constitutional loophole to misbehave.
Review of constitutional
Promote a constitutional amendment was originally a horse presidential campaign platform,
Currently revising the constitution is neither feasible
Ma should seize the time,
Promotion of relevant legislation,
Blocked constitutional vulnerability.
Otherwise, further similar flat was elected president.
Constitution Day is Constitution Day of the Dead, sooner or later will become.

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。