Ma needs constitutional law lesson
By Houng Yu-houng 洪裕宏
Monday, Jun 26, 2006,Page 8
`On what grounds do legislators or parties claim the right to recall the president? Ma's statement that supporting the recall motion against Chen is tantamount to supporting democracy suggests he is confused.'In seeking to recall President Chen Shui-bian (陳水扁), the pan-blues are full of awe-inspiring righteousness.
Last week, in the midst of a Chinese Nationalist Party (KMT) rally in Changhua County to denounce Chen, KMT Chairman Ma Ying-jeou (馬英九) said that when there are elections, there is the possibility of recall, and that supporting the recall motion against Chen is therefore the same as supporting democracy. It is regrettable to see that Ma, with a Harvard doctorate in law, has such a shallow understanding of the recall institution and democracy.
In countries with a Cabinet system, the president is only a nominal head of state and there is little need to recall him or her unless there is evidence of some major wrongdoing. If policy matters are at stake, the opposition can achieve its goal by holding a vote of no confidence in the Cabinet.
Only countries with a presidential system have to face the question of whether or not to recall the president. It is only because Taiwan has a "flawed" semi-presidential system that the opposition parties are able to propose both a presidential recall and a vote of no confidence.
Ma argues that Taiwan should move toward a Cabinet system by allowing the party with a legislative majority to form the Cabinet and establish constitutional precedents in lieu of constitutional amendments. Although the opposition has the legal right to initiate a presidential recall, Ma could demonstrate that he has a consistent approach to constitutional politics by exercising self-restraint and pushing for a vote of no confidence in the premier rather than seeking to recall the president.
Those who elect the president can also recall him or her. Taiwan's presidents used to be elected by the National Assembly, and therefore, the National Assembly had the right to recall the president.
However, pursuant to the abolition of the National Assembly and the institution of direct presidential elections, the legislature was given the right to initiate recall proceedings while the public can only show their approval or disapproval through a referendum.
Giving the right to initiate a recall motion to political parties was a clear violation of the democratic principle that the right to recall the president should belong to the people. On what grounds do legislators or parties claim the right to recall the president? Ma's statement that supporting the recall motion against Chen is tantamount to supporting democracy suggests he is confused about constitutional theory. If the nation intends to retain the right to recall the president, then the right to initiate a recall should be vested in the people, not in political parties. Ma's drive to initiate the recall motion therefore lacks legitimacy.
But is a right to recall the president justifiable? Consider the example of the US. American citizens cannot recall their president. If they want to see their president step down, it has to be done through impeachment, which must be initiated by the House of Representatives, investigated by independent prosecutors and decided upon by the Senate.
The US president is indirectly elected, and that is why the right to impeach the president has been given to the House of Representatives.
Former US president Richard Nixon was accused of obstruction of justice over the Watergate case while former US president Bill Clinton was impeached on charges of perjury and obstruction of justice. A recall is a political move, which does not require a crime to have been committed. A political or policy reason is sufficient. Recall attempts are only feasible at the state level in the US.
However, 32 states have banned the recall of government officials, leaving only 18 states with a recall system in place. The main reason that the recall system is not universal in the US is that it is highly politicized and therefore likely to lead to social conflict and damage democracy.
Ma also said that the successful recall of governor Gray Davis ofCalifornia is one example, adding that Davis was recalled because his government had presided impotently over a tripling of electricity prices.
This is not a good analogy. We now know that the electricity price hikes in California were the result of Enron's drive to inflate electricity prices. Although Enron went bankrupt in 2001, the scandals surrounding the company were only disclosed after a few years of investigations.
How can we be sure that future historians will not conclude that the impotence of the Chen administration, which was part of the first-ever transition of power in Taiwan, was caused by the pan-blue-led "scorched earth" political strategy.
I suggest that Ma study the political systems of other countries, support popularly based constitutional reform. A good Constitution will not include the institution of presidential recalls.
Houng Yu-houng is the convener of the Constitutional Reform Alliance.
Translated by Daniel Cheng.
