On Nov. 5, all of the accused in a case of alleged corruption related to the second wave of financial reform that was carried out under the administration of former president Chen Shui-bian (陳水扁) were found not guilty in the Taipei District Court, including Chen himself.
This verdict has been greeted by a torrent of criticism. Behind this reaction lies a mistaken notion and confusion, be it intentional or otherwise, between the president’s legally defined powers and his political influence, and between the associated concepts of legal responsibility and political responsibility.
Taiwan’s government is a dual-executive system, also called a semi-presidential system. The main feature of this system is the division of executive power. The president is head of state, and also holds some executive powers, which are defined in the Constitution on an article-by--article and clause-by-clause basis.
In the reasoning section of Constitutional Interpretation No. 627 concerning presidential state secret privileges, the Council of Grand Justices lists the presidential powers granted by the Constitution and by various constitutional amendments.
These include powers related to national defense, foreign and cross-strait relations, emergency state powers and so forth.
The president’s executive powers arise directly from the Constitution rather than being bestowed upon him through laws passed by the legislature, so efforts to determine whether a president has broken the law by exceeding his legally defined powers must involve constitutional questions, rather than being limited to questions of ordinary statutory law.
Executive powers that are beyond the legally defined powers of the president are generally assigned by the Constitution to the Cabinet or the Executive Yuan. Although there have been various constitutional amendments, the article stating that “the Executive Yuan shall be the highest administrative organ of the state” has never been altered.
The system of political accountability whereby the Cabinet informs the legislature of its policy directions, makes policy reports to the legislature and accepts lawmakers’ questions remains in place. An amendment was made to the Constitution to the effect that the premier — the president of the Executive Yuan — is appointed by the president, with no requirement that the appointment be approved by the legislature.
In practice this gives the president an actual influence over many policy decisions of the executive branch, but that influence arises from the political system, and depends on the president’s personal charisma and prestige.
It has not systematically altered the distribution of powers between the president and the executive branch.
For example, President Ma Ying-jeou (馬英九) made known his standpoint on the issue of a High Administrative Court ruling halting construction of the third and fourth stages of the Central Taiwan Science Park. He also expressed his views on the Suhua Highway improvement project. These are cases of the head of state expressing his position on major policy issues. They are political acts, but these issues do not fall within the legally defined powers of the president.
The Constitution provides two different systems — recall and impeachment — for monitoring the president and holding him to account. These control mechanisms have been present in the Constitution ever since it was written and their purpose is to subject the president to checks and balances.
In other words, those who drafted the Constitution and those who later amended it have clearly distinguished between the president’s political and legal responsibilities. Recall of a president is designed to hold the president to account for his or her political responsibilities. It depends on the public’s political approval or disapproval of the president.
It is not necessary for the president to have committed a crime — the public can still make the president step down by voting in favor of a recall proposal in accordance with the legally defined process.
The purpose of impeachment, on the other hand, is to hold a president to account for his or her legal responsibilities, so if the legislature proposes a motion of impeachment against a president it will be adjudicated by the Council of Grand Justices.
When a court adjudicates on the question of whether a president has abused his powers to obtain unlawful benefits for himself or for others in a particular case, it must go back to examining the president’s legally defined powers.
Only by so doing does the court comply with the basic principle of a country under the rule of law, namely that of trial according to the law. Otherwise we would descend into mass trials like those that took place during China’s Cultural Revolution and Taiwan would be mired in unending political struggle.
Chen Yaw-shyang is an assistant professor of public administration and policy at National Taipei University.
TRANSLATED BY JULIAN CLEGG
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