Why talk about constitutions?
If we only think of them as the supreme law...
Nearly every country has its own constitution
If the constitution is no more than a supreme law
what is the point of talking about it?
Let's make a comparison
From your last session of international relations
you probably know about this
I'm not sure if Professor Ming has mentioned it
What is currently the biggest problem for the UN
or for the UN Security Council?
Good
It's the Syrian crisis
Now, do you know whether Syria has a constitution?
Does Syria have a national constitution?
After checking online
you should know that it does
So Syria has a constitution
Taiwan also has a constitution
Does this mean that we are the same?
They both have a constitution
Syria has a president, Bashar al-Assad
And we also have a president
Will two countries be on the same path
if they both have a supreme guiding principle?
Is this all it takes?
This August, Assad appointed a new prime minister
This prime minister was inaugurated with honor
But after less than 44 days in office
he defected to Jordan
Can you imagine our premier
or the President of the Executive Yuan fleeing to another country?
He had only been in office for about 40 days before he defected
After he arrived at Jordan
he released a public statement
saying that he was escaping from a terrorist, murderous regime
to the free world
and that he was joining the holy revolution
As you see, Syria has a constitution
like Taiwan does
So why did Syria end up like that?
What is the difference between having a constitution and not?
I have to first make clear that
understanding constitution as the supreme law is not enough
because each country has a supreme law
Any organization can have that
Understanding constitutions in this sense
is clearly inadequate
We must go beyond that
Constitutions are far more than highest principles
What best defines a constitution is the purposes it serves
Firstly, it acts as limiters of state power
Secondly, it safeguards the rights of the people
Only when it achieves these two purposes
can we say that a constitution is in line with Constitutionalism
So how can we prevent the abuse of state power?
There are two approaches
The first is external constraints
Simply speaking
we can establish laws and regulations
to limit the exercise of powers
This is one approach
Yet this approach has its limitations
In what way?
I would say in its applicability
The approach might work for certain cases
such as hierarchical control
the control of superior units over lower units
To control the subordinating units
the higher units have to establish regulations
The lower units violating these regulations
are subjected to punishment
This is what I meant by external constraints
This approach is effective to a certain extent
However, in terms of limiting political powers
especially the powers of rulers
it might not work
Take the Syrian crisis for instance
Syria surely has its own constitution and laws
I'm sure their laws do not reward people for homicide
They must have punishments set for murders
So if a Syrian citizen kills people on the street
and is arrested
the person will be sentenced according to the law
So prescriptive methods
apparently can be effective
But would it be a crime
if it is Assad who committed murder?
This is the key question
Suppose that the Syrian Presidential Guard
or Assad's special forces unlawfully killed someone
Who'd arrest them?
Who is to enforce the law?
This is the first problem
Who will catch the murderers?
The second problem...
The first difficulty is law enforcement
and the second is the application of law
Who applies the law?
It is the judges
After a judge was assigned the case
he or she might get a call from the Presidential Office
saying that the defendants' act was for the best interests of the country
and that the judge should consider this when ruling the case
In the end, the court acquitted all defendants of the murder
How effective then are the prescriptive methods?
The law enforcement agencies that make arrests
may not have the courage
to perform their duties
to carry out their mandate
and arrest the suspects
Under such circumstances
in the face of an absolute power
they may not be able to impose punishment
So, under these circumstances
how can we deal with this absolute power?
Western countries has developed an important mechanism for this
In addition to external constraints
they found an additional approach
called internal constraints
What are internal constraints?
The phrase that best describes it
is to use ambition against ambition
and power against power
How can we use ambition against ambition?
How can we use power against power?
In Western Constitutionalism they developed a method
called the principle of separation of powers
What is the separation of powers?
Basically, it's to divide governmental powers into three branches in the constitution
executive, legislature and judiciary
We separate the government's powers
into three branches
Divided powers minimize potential harm
We may ask ourselves
whether the constitution of the Republic of China
is in line with the Constitutionalism and has a separation of powers
This is the first question
Second
even if the provisions of our constitution are designed this way
in terms of the actual operation of our constitutional system
is absolute power avoided?
In 2000
shortly after Chen Shui-bian was elected president
he announced through his premier
that the government would halt the construction of the Fourth Nuclear Power Plant
Upon the announcement
a question arose
Chen Shui-bian was the newly elected president
When dealing with Taiwan's national policy for nuclear power
in order to achieve his personal campaign promise
of building a nuclear-free homeland
he canceled the construction of Nuke 4
Could the project be canceled just because the president announced so?
If that's the case
does it mean that our president has absolute power
because he has the final say?
The question is
whether the president or the ruling party
has the absolute power over issues like this
The answer will help us find out whether our constitution acts as a limiter of absolute power
Let's do a bit of recap
Shortly after he was elected president
Chen announced the suspension of the Nuke 4 project
That raised a lot of critical voices
from the majority in the Legislative Yuan
which was the Pan-Blue Coalition consisting of the KMT and PFP
They are against the project suspension
Therefore, there was a conflict between
the executive and the legislature
In the course of their argument
two stories emerged
The legislature argued that based on Article 63 of the Constitution
Nuke 4 was a case of "important affairs of the State"
and was under its jurisdiction
The Executive Yuan argued that according to Article 53 of the Constitution
it was the "highest administrative organ"
and had the right to plan and execute the budget
The legislature insisted that, according to Article 63
and Item 2, Article 3 of the Additional Articles
the Executive Yuan shall be responsible to the Legislative Yuan
which thus had to be involved
Without the legislature's approval
suspending the construction of Nuke 4
would be unconstitutional
Everyone knows how this ended
The Constitutional Court issued Interpretation No.520
The Justices stressed something at the beginning
If you have not read it
Make sure to read it after class
Always remember to read the materials beforehand
If you haven't, check them up afterwards
The justices started by emphasizing
that the energy policy of Taiwan
was not something the Court had a say in
The question of whether to build a nuke
could not be answered by them
The Court also could not give opinions on it
because it was not their area of expertise
The Court could only decide whether the president's move was unconstitutional
Also, the Constitution does not stipulate
whether or not we should build nuclear plants
That is not the point
No.520 thus should not be regarded as for or against nuclear power
The Court did not express any opinion on this issue
No.520 emphasizes on the true spirit of the Constitution
Accordingly, when an administrative organ wishes to change the policy
even if it represents a new public opinion
and even if the legislature was elected years ago
any change to important national policy
must be reported to the Legislative Yuan
In other words, the executive must be responsible to the legislature
The government's direct announcement of halting the construction
is disrespectful to the powers of the legislature set forth in the Constitution
and is thus clearly unconstitutional
OK
After this Interpretation was issued
the Executive Yuan had to report to the Legislative Yuan
The Legislative Yuan did not support the suspension
so, in the end, the construction was restarted
and is still ongoing now
It is not completed yet
and has been highly controversial
but that is already another issue
Taipower may have lots of problems
The nuclear policy may be still open for debate
What we are most concerned about is whether our country has Constitutionalism
and whether our Constitution functions as a limiter of absolute power
From this perspective
this was a newly elected president
with strong public support
making a decision
hoping that this decision was final
and would not be challenged or overthrown
However, with the separation of powers
and the doctrine of Constitutionalism
his decision was challenged, questioned
and eventually overthrown
The whole event was resorted to the constitutional framework
What I'm trying to show with this case
is that the Constitution of the Republic of China
not only has the separation of powers
but also allows one power to limit another
From this perspective
our Constitution is in line with Constitutionalism
It reflects the spirit of Constitutionalism
Our Constitution is capable of limiting absolute power
Even if you are elected president
and enjoy strong public support
you still do not have the final say on everything
You need to consider the opinions of others
such as the Constitutional Court
and other governmental organs
Clearly, the constitutional state in Taiwan is very different from that of Syria and Libya