【置頂文章】【因應防疫,延期舉辦】0522「司法除垢與司法改革:從翁茂鍾案談起」永社司改系列座談會(九)

【置頂文章】【因應防疫,延期舉辦】0522「司法除垢與司法改革:從翁茂鍾案談起」永社司改系列座談會(九)
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2017年10月16日 星期一

High Court reinvents presidential system

Huang Di-ying  黃帝穎
(Huang Di-ying is a lawyer and director of Taiwan Forever Association)
(作者為律師、永社理事)

Translated by Tu Yu-an and Paul Cooper

TAIPEI TIMES / Editorials 2017.10.16
http://www.taipeitimes.com/News/editorials/archives/2017/10/16/2003680428/1

The Taiwan High Court on Wednesday, to the surprise of many, acquitted former president Ma Ying-jeou (馬英九) of abetting a leak of classified information. As part of the reasons for the acquittal, the court cited Taiwan’s constitutional government system and referred to presidential systems of government to justify Ma’s leak of the classified information.

The verdict is an international embarrassment, failing as it does to uphold the principle of the separation of powers and the rule of the law that are essential to democracy, and confirming that the president has the power to interfere with ongoing individual investigations.

The High Court ruled that: “The nation’s president is not a titular head of state, and even though members of the general public and scholars of law and politics often refer to the nation’s political system of constitutional government as a hybrid, semi-presidential system, in practice the premier is directly appointed by the president, while ministers are usually determined jointly through discussion by the president and the premier. The public considers the premier to be chief of staff, and in that they are not wrong… for Ma to have attempted to ascertain whether this case involved illicit lobbying and to have brought the premier in on the matter, in the interests of dissipating a political storm and maintaining political stability in this country in the national interest, conforms to the political situation here in Taiwan over the past few years, and is not inconsistent with the system of constitutional government.”

By extension, Ma’s presidential powers covered investigating ongoing individual cases, allowing him to extend the powers of the president into judicial cases. This is quite inconceivable in a democracy.

The US is perhaps the gold standard for the presidential system. Even there, the president does not have the power to act “in the interests of dissipating a political storm and maintaining political stability in [the] country in the national interest” and to use this as a pretext for intervening in individual cases.

A case in point: When US President Donald Trump attempted to implement what he called a “travel ban” to prevent immigration from seven countries, he was stopped in his tracks by the courts; neither did the president have the right to interfere with the judicial process.

In the same way, Trump is even more vexed with the ongoing inquiry into Russian interference in the US election, and yet the president has no power to find out about the progress of the inquiry, or indeed to ask his secretary of state or attorney-general to deal with it as a means to “dissipate a political storm.”

The High Court has essentially taken it upon itself to fabricate a kind of superpresidential system — more powerful even than the US presidential system — all to enable Ma to evade conviction.

As part of this fabricated system, the president in Taiwan is apparently allowed to intervene in individual judicial cases, listen to the transcripts of conversations of the incumbent legislative speaker in an ongoing investigation being carried out by the prosecutor-general, while disregarding the principle of the separation of powers enshrined in the constitution.

By the same logic, President Tsai Ing-wen (蔡英文), and indeed all presidents in Taiwan from this day on, can proceed along the “Ma model” of governance.

Now, whenever the head of a branch of government is involved in an investigation, the president will be allowed to listen in on wiretapped recordings, or ask their prosecutor-general to give them a report on the progress of the case. Is that right?

The High Court’s acquittal of Ma not only rides roughshod over democratic values and constitutional government, it harms the public’s trust in the judiciary.