Limits to constitutional authority
By Su Yen-tu 蘇彥圖 /
Sun, Sep 29, 2013 - Page 8
Constitutionalism attempts to keep power politics in check to prevent the
rule of tyranny. However, it is inevitable that some ambiguity and
disagreements will occur when it comes to the meaning of constitutional
law and constitutional morality.
People have to get involved, as these norms will not take effect on their
own. The drawing and policing of “constitutional red lines” relies on the
ceaseless deliberation and participation of the entire citizenry. The power
elites cannto be expected to honor such “red lines” in good faith, nor can
the Constitutional Court ne entrusted to uphold constitutional justice.
MA’S ‘RED LINES’
There are at least some constitutional “red lines” everyone seems to agree
with, for example: The government cannot engage in illegal wiretapping.
President Ma Ying-jeou (馬英九) and the prosecutor-general have flatly
denied that they did anything illegal. However, many people have raised
reasonable doubts in this regard. While some issues concerning the
interpretation and application of law remain unresolved, the settlement of
this kind of constitutional dispute is contingent on whether investigations
can reveal what really happened through legitimate procedures of
constitutional inquiry.
This constitutional storm also touches on a normative dispute concerning
where and how to draw the “red lines.”
With a lot of maneuvering from Ma, who is also chairman of the Chinese
Nationalist Party (KMT), the KMT swiftly revoked Legislative Speaker
Wang Jin-pyng’s (王金平) party membership over his alleged improper
lobbying on behalf of Democratic Progressive Party (DPP) caucus whip
Ker Chien-ming (柯建銘) in an attempt to cause Wang to lose his seat at
the Legislative Yuan along with his position as legislative speaker.
Whether such moves are constitutional depends on how we think of the
relationship and the boundaries between political party and state.
PARTY-STATE RELATIONS
Two dimensions of party-state relations are involved here.
First, many people have strongly criticized Judicial Yuan Interpretation No.
331 and its subsequent codification by the Election and Recall Act (公職人
員選舉罷免法) and have demanded that a fundamental reform be made to
the system in which legislators-at-large lose their seats the moment they
lose their party membership.
However, many people still hold on to the formalistic reasoning that a
political party should be responsible for expelling legislators-at-large
because they cannot be recalled like legislators elected from district
elections can be.
The problem with this reasoning is that it totally ignores how hard it is to
get rid of legislators with their own constituencies and how easy it is for a
party to get rid of its legislators-at-large. This is an issue linked to the role
political parties play in the nation’s representative democracy and is
something worthy of further reflection and deliberation.
The second dimension of the party-state relations has to do with the
relations that exist between party politics and the separation of powers.
Can the president may openly interfere parliamentary affairs as long as he
does so in the name of the party he leads.
Developments in party politics have indeed profoundly changed the order
that the separation of powers was supposed to bring about according to
classical constitutionalism. However, this does not mean that political
parties can do whatever they want, especially a Leninist-style political
party that simultaneously wields both executive and legislative powers.
This robs the separation of powers of its constitutional significance and
allows those involved in politics to only have to care about their respective
political parties while showing absolutely no regard for fidelity to the
constitutional system.
If the lack of a robust parliamentary ethics law somehow can justify the
president sticking his hands into issues of legislative self-rule, why would
people not embrace authoritarian rule? It might outperform democracy in
terms of efficient governance.
LESSON OF WATERGATE
When former US president Richard Nixon was forced to resign over the
Watergate scandal, he said in his defense: “When the president does it,
that means that it is not illegal.”
Two centuries earlier, former US president and particpant in the US
constitutional convention James Madison famously wrote in the Federalist
Papers arguing for ratification of the US Constitution: “Ambition must be
made to counteract ambition.”
If there are limits to the use of Madisonian constitutionalism and if civic
society is not vigilant enough to the power abuse disguised in noble
causes, then regardless of how much the power elites may proclaim that
they are respecting and following the constitution, really all they are
following is the type of constitution that is devoid of any “red lines,” just like
the one Nixon was referring to.
Su Yen-tu is an assistant research fellow at Academia Sinica’s Institutum
Iurisprudentiae.
Translated by Drew Cameron
Published on Taipei Times :
http://www.taipeitimes.com/News/editorials/archives/2013/09/29/2003573246
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