Taiwan's Worst Problem: Laws are mere Formalities

Taiwan's Worst Problem:
Laws are mere Formalities
China Times editorial (Taipei, Taiwan, ROC)
A Translation
March 25, 2013

Summary: Taiwan's legal system is nominally comprehensive. But it is a far cry from any mature rule of law. Public awareness has been awakened. But a considerable gap remains between public expectations and government accomplishments. Taiwan has no shortage of social movements. But social movements do not fully represent society as a whole. Most troublesome of all, government policy is often held hostage by social movements. Dialogue with society as a whole is ignored. One example is the long controversial 4NPP. No resolution has been reached after 32 years.

Full text below:

Three years ago, when Vice President Wu Den-yih was Premier, he said everyone says laws on Taiwan are as numerous as hairs on an ox. But when it comes time to enforce them, "The sky may rain gold bullion, but one cannot grab even a single one." His words struck a chord for many people. At the time, social groups were expressing extreme dissatisfaction with the sensationalistic news stories published by "Action News." Eventually public indignation forced the Taipei City Government to enforce the law and impose fines. Wu Den-yih's remarks still apply to many aspects of life on Taiwan. The government fails to govern fairly and decisively in accordance with the law. This leads to public clashes over social values. Opposite poles of society remain locked in an endless tug of war. Major policy decisions become difficult, if not impossible. This has become a key impediment to progress on Taiwan.

For several consecutive days, the China News has tackled difficult topics. They include the Number Four Nuclear Power Plant (4NPP) controversy, as well as wrangling over EIAs, media monopolies, urban renewal, and the abolition of the death penalty. It has conducted in-depth investigations. Taiwan trumpets its democracy and rule of law. But the truth is, it is a lawless society. Its laws are mere formalities. This has become Taiwan's most serious problem.

The rule of law is the basis of constitutional rule. It subjects the government to constitutional constraints, ensuring that the law represents the will of the people. Laws are passed by elected legislators. Such a framework limits both the government and citizens. Neither can exceed these limits. The constitution defines government power and prevents its abuse. The law defines people's rights, and the bounds beyond which they cannot go without detriment to the rights of others. In other words, the rule of law is binding on both the government and the people.

Taiwan's legal system is nominally comprehensive. But it is a far cry from any mature rule of law. Public awareness has been awakened. But a considerable gap remains between public expectations and government accomplishments. Taiwan has no shortage of social movements. But social movements do not fully represent society as a whole. Most troublesome of all, government policy is often held hostage by social movements. Dialogue with society as a whole is ignored. One example is the long controversial 4NPP. No resolution has been reached after 32 years. The Legislative Yuan fought over the budget under Lee Teng-hui. The Chen Shui-bian administration restarted then stopped construction. Controversy over whether construction should be continued or halted rages on even under the Ma administration. Years ago, pro-nuclear sentiment outweighed anti-nuclear sentiment. Today anti-nuclear sentiment outweighs pro-nuclear sentiment. But whether a politically diverse Taiwan continues or halts construction on the 4NPP is irrelevant. How we arrive at the final decision is irrelevant. Controversy over whether the project should be continued or halted will persist. Therefore the only relevant issue is what procedure can implement the wishes of the majority while mollifying the feelings of the minority, and enable society to reduce controversy to a minimum.

The Chen Shui-bian administration unilaterally halted construction on the 4NPP, generating a political storm. The 4NPP policy and budget were passed by the legislature after three readings. They represented the will of the majority under a democracy. But Japan's Fukushima nuclear disaster led to a global re-examination of energy policy. The government unilaterally and unconstitutionally halted construction on the 4NPP. According to the law, the government has only two alternatives. One. A majority in the legislature resolves to halt construction, backed by the will of the majority. Two. If the legislature finds it difficult to make a decision on behalf of the people and for posterity, it can appeal directly to the public, by seeking a public referendum. But either way, pro-nuclear or anti-nuclear views will not be silenced. This is the hallmark of a democratic and pluralistic society. One will always have minority dissent. One will always have differing opinions. Given this diversity of opinion, good government will identify the will of the majority and implement it. A government must not fear making decisions merely because there is dissent.

Anti-nuclear sentiment is increasing. The Ma administration has chosen to seek a public referendum. To some extent this will alleviate pressure on the legislature. It will spare the legislature intense conflict. It will avoid the need to mobilize party legislators over the 4NPP controversy. But it cannot avoid increased political pressure pro and con. This pressure will build as we approach the 2014 seven in one election, and even the 2016 presidential election. Actually, such political predictions are superfluous. Even if the legislature arrives at a decision without resorting to a referendum, the political backlash will persist through the next two elections.

A responsible government must make bold decisions. It  must not overlook the need for communication and dialogue before and after implementing its decisions. Construction on the 4NPP was first halted, then resumed. During the last few years, neither Blue or Green administrations have dialogued with the public. Even anti-nuclear groups have been ignored. Resumption of work on the 4NPP involved hundreds of omissions. The Control Yuan corrected these omissions and impeached those responsible for them. But Taipower and the agencies in charge have yet to improve their operating procedures. Omissions such as these led to the Fukushima nuclear disaster. They significantly increase public concerns over the 4NPP. Whether the controversy is resolved via a public referendum or a legislative ballot, a construction halt on the 4NPP is an energy policy dilemma that either a Blue or Green administration will have to face. Continued work on the 4NPP will requires assurances of nuclear safety. One cannot relax, not even for even a day. One must realize that despite disagreements, everyone is a citizen. A democratic Taiwan must be a rational Taiwan. The consequences must be borne by everyone.
   
中時電子報 新聞
中國時報 　2013.03.25
社論－「有法無天、正本清源」系列二之一 法規形同具文 已成台灣最大危機
本報訊

    　三年前，副總統吳敦義擔任行政院長時期，曾經說了一段話：平常大家都說台灣的法令多如牛毛，但真正要用的時候，卻是「滿天全金（法）條，要抓沒半條」，打動了許多人的心。當時，為的是「動新聞」內容羶色腥遭致社運團體嚴重抗議，最後，在民情激憤下，由台北市政府依法裁罰。說來諷刺，吳敦義引用的諺語依舊適用於台灣各個領域，政府不能公正果斷地依法行政，甚至放任人民價值對立，在民情好惡兩極分明的拉鋸中，導致重大政策懸而難決，已經成為阻礙台灣進步的關鍵病因。

    　《中國時報》連續數天，就核四爭議、環評角力、媒體壟斷、都更難題、死刑存廢等五大議題，深入檢視，號稱民主法治健全的台灣，其實是一個「有法無天」的社會，法律規範形同具文，其嚴重程度已經成為台灣最大危機。

    　法治是憲政的基礎，其理念係要求政府所有權力的行使都要受憲法制約，確保法律源於人民的意志，經過代表民意的國會通過，在此框架下，政府和公民的行為都是有邊界的，不能互相僭越；憲法在於規範並防止政府權力的濫用，法律同樣要規範人民權力越界而損及他人權利。換言之，法治原則不論對政府或人民，都有其拘束力。

    　台灣的法制堪稱完整，但成熟的法治卻還有段距離，特別在公民意識覺醒後，效能政府與公民社會之間，彷彿存在相當落差；台灣不缺社會運動，但社會運動未必能完全代表公民社會，最麻煩的是，政府施政受困於社會運動，卻疏忽與真正公民社會對話的可能。以爭議經年的核四為例，歷卅二年而無解，除了前總統李登輝任內，立法院大打幾架通過核四預算，從扁政府的停建再復建，乃至馬政府續建而停建聲浪再起，不論是當年的擁核民意遠超反核，或者今日反核氛圍似乎超過擁核，只反映一個事實：多元台灣不論最終核四是續建或停建，不論經過何種程序，都會持續有反對者與贊成者，那麼我們唯一要找尋的答案只有一個：什麼程序才能讓多數意見落實，少數意見放棄超過比例的抗爭，讓社會因此可能形成的對立降到最低？

    　扁政府片面停建核四造成的政治風暴殷鑑未遠，基於核四政策與預算均係經過國會三讀程序，即代表民主的多數民意，即使日本發生福島核災，全球重新檢視能源政策，但政府片面宣布核四停建涉及違憲違法的客觀現實依舊存在。政府依法行政只能循兩條路：第一，國會多數議決停建，以多數民意為後盾；第二，國會若自認難以替全民、後代子孫做出價值抉擇，那麼只有訴諸直接民意，交付公民投票。但不論何者，都不可能讓擁核或反核任何一方的意見消弭於無形，這就是民主多元社會的表徵：永遠有少數意見、永遠有不同意見，效能政府能做的就是在各種意見中，找出確定多數意見並據以執行的方法，但不能因為意見紛紜雜沓而不敢有所決斷。

    　在反核四民意集結的風潮下，馬政府選擇以交付公民投票，某種程度紓緩了國會壓力，省卻國會激烈衝突的成本，也避免黨籍立委在黨的動員護航核四下的左右為難；但還是不免後續正負難料的政治壓力，會不會累積到二○一四年的七合一選舉，乃至二○一六年的總統大選。其實類似政治算計已經不必再算，即使不公投而逕由國會決定，其政治後座力依舊會延續到未來兩次大選。

    　做為負責任的執政政府，唯一要做的就是勇於決斷，同時在執行過程前後，都不能輕忽溝通對話的必要，核四自從停建再復建後這幾年，不論是藍執政或綠執政，不要說完全未與公民社會對話，甚至連反核團體都被政府打入冷宮。核四廠復建過程中疏漏百出，幾經監察院糾正彈劾，亦未見主管機關和台電拿出有效改善辦法，導致福島核災後，社會對核四廠安全性疑慮大增。不論是經過公投或國會議決，核四若停建，未來不論藍綠政府都要面對重議能源政策的挑戰；核四若續建，核安的說服與保證依舊無一日能放鬆；對所有民眾而言，則不能不了解，即使意見不同者都是公民之一，民主台灣也必須是理性台灣，對其結果都要共同承擔。