When President Chen Shui-bian's son-in-law was investigated in connection with a string of insider trading scandals and the first lady was under investigation for allegedly obtaining and selling SOGO gift certificates in exchange for lobbying, President Chen faced severe critiques from the opposition and the media. Although President Chen apologized several times for his family's corruption allegations, his relative and former senior aids are accused of using the President's influence for financial gain; thus leading to that more and more people supported to recall President Chen or asked President Chen to resign on this own.
To respond to the demands of the public opinion, the opposition in the LY proposed to recall President Chen in the Legislative Yuan's (LY, 立法院) extraordinary session (臨時會) which was held on June 13th[1]行政院) at the second session of the LY which will be held starting in September. Although it is almost impossible for the opposition to pass the recall proposal by winning two-thirds of all the 221 members of the LY, if the 15 days investigation of the recall proposal by the LY expose more evidence of wrongdoing that prove President Chen or his wife were connected to those scandals, President Chen might be forced to resign by himself. Once President Chen resigns, Su Tseng-chang, the president of the EY (Premier, 行政院院長) will also be forced to resign in accordance with the constitutional precedent. This recall by the LY was the most serious challenge that President Chen and the ruling party have ever met since 2000. This development also showed that the role of the LY couldn't be ignored whenever the opposition controlled more than half seats.. This is the first time for any ROC's President to be formally proposed for recall by the LY. Moreover, the opposition also might propose a no-confidence vote in the president of the Executive Yuan (EY,
If President Chen declines to resign or the recall motion fails, the opposition might force Premier Su to leave his office by a no-confidence vote. No matter if it's through the recall motion or no-confidence vote, the LY become the main battlefield for the opposition to effectively fight against President Chen and the ruling party. In other words, the LY now played a critical role for the opposition to counterbalance the ruling party. However, although the revision of Constitution has granted more power and function to the LY, the LY is not as powerful as it was prior to 2000.
In accordance with Article 62 of the Republic of China (ROC) Constitution, “the Legislative Yuan shall be the highest legislative organ of the State, to be constituted of members elected by the people. It shall exercise legislative power on behalf of the people.” The LA has the following function and power: general legislative power, confirmation of emergency decrees, hearing reports of administration and request the EY to alter policy, examination of budgetary bills and audit reports, consent to the nomination for President of the EY, draw up amendments to the Constitution for submission to the National Assembly (NA, 國民大會), interpellate the premier, ministers, and chairpersons of commissions of the EY, and settlement of disputes concerning self-governance. Like the MPs in other democratic countries, “no member of the LY shall be held responsible outside the Yuan for opinions expressed or votes cast in the Yuan.” (Article 73) “No Member of the Legislative Yuan shall, except in case of flagrante delicto, be arrested or detained without the permission of the Legislative Yuan.” (Article 74) Although the LY is the highest legislative body in the Constitution, it was viewed as a “rubber stamp” assembly for a long time[2]. However, the LY's constitutional role, relative to the EY's, has greatly enhanced through a series of revisions of the Constitution since 1990. Nevertheless, before 2000, the ruling party or the President still tried to control the LY through party mechanisms. This situation didn’t change until 2000 when the Democratic Progressive Party’s (DPP, 民主進步黨) presidential candidate Chen Shui-bian won the election and then organized a so-called minority government[3] (少數政府). Unfortunately, the minority government faced strong boycotts from the opposition, which controlled more than half seats in the LY. As a result, it’s the opposition rather than the ruling party, which dominated important policies or statutes in the LY.
Recently, Ta-chi Liao presented a very interesting paper on the transformation of Taiwan’s Legislative Yuan during the process of democratization. In her paper, Liao challenged the stereotype of the “rubber stamp”image of the legislature in an authoritarian system and offers an alternative image as a “sleeping lion”. Moreover, Liao proposed that this sleeping lion would transform into an “awakened lion” and then “roaring lion” through the changes in the political environment. Liao’s research found that the LY did not respond to the demands of the wider environment in the period of authoritarianism. The LY did better in the period of soft authoritarianism, but was not respond in a sophisticated way. However, the LY roared loudly and fiercely in the period of democratization. It not only responded to, but also set the agenda of the wider environment.[4] Liao's paper showed us what happened to the LY in the process of Taiwan's democratization. However, she failed to tell us why the LY did not respond to the wider environment in the period of authoritarianism and soft authoritarianism? At the same time of the process of democratization, we also found that the seats of the ruling party in the LY were cut from absolutely majority to fragile majority and then loss of its majority. Furthermore, the number of resolutions passed during each session also changed. Therefore, it seems to me that the party composition in the LY might play a role in affecting the power and function of the LY.
As for the party’s role in affecting its members in the legislative organ, Paul Silk and Rhodri Walters argue, “Political parties are a limitation on MP’s freedom of action.”Each MP (Member of Parliament) must always remember that they are only MPs because each of them has a party label. They are first of all responsible to their political parties, which will tell them how to vote. As a result, MP will vote along party lines on most occasions. They all have party loyalties. For Silk and Walters, the House of Commons is “the arena for the political battle between the ideologies of the principal political parties.”[5] If the MP must vote along the party line in a democratic country like Britain, we can hardly imagine that a Legislator in Taiwan could enjoy freedom of action in the period of authoritarianism or soft authoritarianism[6]. In the Taiwan’s case, we found that almost all party members in the LY voted along party lines; no matter the authoritarianism or democratization's period.
In this paper, first of all, I would like to deal with the changing roles of the LY through the comparison of the roles of the NA, the Control Yuan (CY, 監察院) and the LY, and, the comparison of the LY’s roles in the Constitution as well as each amendments. However, the analysis of the LY’s changing constitutional roles will be too static to understand the real roles of the LY in the political process. To better understand it, we might have to investigate how the party composition in the LY affects the function and power of the LY. To deal with this problem, our proposition for this research is as follows:
The more seats in the LY that the ruling party has, the less powerful the LY can counterbalance the Executive Yuan.
This proposition is trying to review Liao’s argument that democratization will enhance the role of the legislature and investigates the role of the Constitution as well as party composition in affecting the LY’s function and power. Even though the revision of the Constitution and the process of democratization might affect the role of the LY, it seems that the party composition in the LY can also affect the function and power of the LY. If the ruling party can dominate more than half seats in the LY, the latter can hardly exercise the power, which are authorized in the constitution. In other words, even though the constitution conferred more power to the LY through revisions, the operation of party politics might effectively restrain the LY to fulfill its constitutional roles. On the contrary, the LY might become very powerful in counterbalancing the executive organ once the ruling party failed to dominate the LY. The fewer seats the ruling party has in the LY, the more obvious that the LY can affect the legislative process. The case that the opposition can successfully introduced the recall motion against President Chen signified that the party composition in the LY should be quite important for us to understand the interaction between the LY and the EY or the President.
Theory of Five-power Constitution
Before our comparison and investigation, there is a need to introduce the basic ideas of “Five-power Constitution”(五權憲法) and the “power-function division principal”(權能區分). In 1916, Dr. Sun Yat-sen, the founding farther of the ROC, proposed the idea of establishing the NA by elected representatives from the people. In 1921, Dr. Sun developed the idea of “Five-power Constitution”and the “power-function division principal”in the Fundamentals of National Reconstruction (建國大綱). On May 5, 1936, the Constitutional Draft of the ROC was passed, it was called the “Five-Five Constitutional Draft”(五五憲草). In the Draft, the NA performed the “power of politics”(政權) as the representatives of the people. The NA has the authority to elect and recall the State President, Vice State President, President of the LA, Vice President of the LA, President of the CY, Vice President of the CY, Legislators, and members of the CY. Furthermore, the NA also can recall Presidents and Vice Presidents of the Judicial Yuan (JY,司法院)and Examination Yuan （ExY, 考試院）. Moreover, the NA not only has the authority to review and modify the Constitution, the right of initiative and referendum, but also has the responsibility over all the Presidents and Yuans. In other words, the NA is an organ, which was authorized relatively strong power of politics just like those parliaments or congress in the western democratic countries.
Based upon the “power-function division principal”, the power of the country is divided into “power of politics”and “power of governance[7]”(治權). The whole body of citizens exercises the power of politics to manage the government; and the government exercises the power of governance to manage the country. The power-function division principal means that power and function are divided and balanced, which gives the NA political power and gives the government its governing function. According to the power-function division principal, the NA represents the sovereignty of the state and exercises political power on behalf of the whole body of citizens[8].
To seek for support from the Communist Party （共產黨）, the National Government (國民政府) called the Political Consultative Conference (政治協商會議) in 1945 and reached an agreement on 12 principles to modify the Five-Five Constitution Draft. One of the principles is to make the NA intangible and let all national electorates perform the four rights[9]. Furthermore, the LY shall be the highest legislative organ and the people shall elect its members. Moreover, the role of the LY shall be equivalent to the congress of western democratic countries. The nomination of the President of the EY shall be approved by the LY. The LY can pass a no-confidence vote against the President of the EY and the State President may declare the dissolution of the LY after that.
The ruling party KMT (國民黨) proposed to resume the NA as a tangible organization but limited its power, and opposed to authorized the LY with the right of no-confidence and approval of the EY president. These two suggestions were accepted by the Conference. As a result, the power of the NA was limited to “elect the President and the Vice President, to recall the President and the Vice President, to amend the Constitution (Item 3), and to vote on proposed Constitutional amendments submitted by the LA by way of referendum (Item 4).”(Article 27) However, the NA’s rights of initiative and referendum can only be put into effect after they “have been exercised in one half of the hsien (縣) and municipalities（市）of the whole country.”
Although the Preface of the ROC Constitution pointed out that the constitution was “in accordance with the teachings bequeathed by Dr. Sun Yat-sen,”Article 25 shows that “The National Assembly shall, in accordance with the provisions of his Constitution, exercise power of politics on behalf of the whole body of citizens.” there are many reasons for us to question how much of the NA’s power of politics was remained and whether the power-function division principal was fulfilled in the Constitution.
In the 1946 ROC Constitution, the NA was authorized the rights to elect the State President and Vice President, to recall the State President and Vice President, to amend the Constitution, to vote on proposed Constitutional amendments submitted by the LY, and rights of initiative and referendum to supervise the government and legislation. However, the prerequisite for the NA to perform the rights of initiative and referendum should be that these two rights “have been exercised in one half of the Hsien (縣) and municipalities (市) of the whole country.”In other words, the NA has been deprived most power of politics in the 1946 Constitution. The different roles of the NA in the “Five-power Constitution”and the 1946 Constitution can be found in Table 1.
（Table 1 about here）
Although the LY was still categorized as a governing organ in the 1946 Constitution, it “shall be the highest legislative organ of the State, to be constituted of members elected by the people. It shall exercise legislative power on behalf of the people”(Article 62). In other words, the LY was authorized power of politics, which originally belonged to the NA in the Five-power Constitution. Furthermore, the members of the LY shall be directly elected by the people rather than elected by the NA. The president and vice president of the LY no longer need to be elected by the NA; they “shall be elected by and from among its members.” (Article 66) Moreover, the LY became the highest legislative organ rather than just a professional legislative organ, which was authorized by the NA to draw up statutes. Just like other democratic countries’ parliaments or congresses, the “Legislative Yuan shall have the power to decide by resolution upon statutory or budgetary bills or bills concerning material law, amnesty, declaration of war, conclusion of peace or treaties, and other important affairs of the State” (Article 63). To counterbalance the President and the Executive Yuan, whenever the President issue emergency orders, it shall be “presented to the LY for confirmation; in case the LY withholds confirmation, the said orders shall forthwith cease to be valid” (Article 43). There is no doubt that the function and power of the LY were greatly enhanced in the 1946 Constitution compare to those in the “Five-Five Constitutional Draft.” In Table 2, we can clearly see the different roles of the NA and the LY in the 1946 Constitution.
（Table 2 about here）
As a whole, the roles of the NA and the LY changed tremendously in the 1946 ROC Constitution. We can hardly argue that the NA is still an organ with the so-called power of politics or that the LY is still a so-called governing organ. On the contrary, the role of the LY is more like the original NA’s role in Dr. Sun Yat-sen’s Fundamentals of National Reconstruction. The NA’s power of politics extremely deteriorated and the NA was no longer the only representative organ those members were elected by a popular vote. In other words, the roles of the NA and the LY seem to have change considerably in the 1946 Constitution. Although the preface of the Constitution asserts that it was designed in accordance with Dr. Sun Yat-sen’s legacy, it is obvious that the “power-function division principal” was no longer a directive principal for the new constitution. On the LY’s website, it emphasizes, “in terms of its power and function, the Legislative Yuan is equivalent to a parliament in other democracies.”[10]
Constitutional Amendments and Their Effects
Since 1991, the ROC’s Constitution has undergone amendments seven times. At the beginning, the NA was authorized some new roles which strengthened its power of politics. In the 1992 revision, although it ruled that the President and Vice President shall be elected by the people rather than by the NA, the members of the Control Yuan (CY), the Justice Yuan （JY, 司法院）, the Examination Yuan (ExY, 考試院) and their Presidents, Vice Presidents were still nominated by the President but the NA shall give it consent to it. In addition, like it is the case in the US Congress, the NA might hear a report on the state of the nation by the President. In Table 3, we can find the different roles of the NA in the 1946 Constitution and following the 1992 amendment. However, in the 1994 revision, the NA’s right to recall the President and the Vice President was abridged. It can only proposed the recall and such proposal shall be passed by more than half of all voters. The changing roles of the NA in recalling the President can be found in Table 4.
（Table 3 & 4 about here）
In the 1997 revision, the LY lost some power but gained some others. First, the President, requiring no consent from the LY, can appoint the Premier. This change greatly weakened the LY’s role in affecting the personnel of the Premier and made the minority government possible. The reason why President Chen Shui-bian can still dominate the appointment of the President of the EY was that thanks to this revision it did matter if his party failed to control half seats of the LY. In addition, the former power to impeach the President and the Vice President was transferred from the CY to the LY. Furthermore, the LY may propose a no-confidence vote against the Premier. Finally, when the EY requests the LY to reconsider the passage of a bill that it seems difficult to put into action, the threshold for the LY to uphold the original passage of the bill is cut down from two-thirds to one-half of all the LY members. This change makes it very difficult for the EY to request the LY to give up its original passage when the ruling party failed to control more than half of the seats in the LY. This is the main reason why President Chen’s minority government frequently chose not to request the LY to reconsider whenever the LY passed a bill that the EY considered it was difficult to carry out. Through the 1997 revision, the LY released its most important right on the consent of the Premier which made it possible for the President to dominate the formation of the cabinet. However, President Chen can hardly control the policy making process in the LY because the DPP failed to master more than half seats in the LY. The changing roles of the LY can be found in Table 5.
（Table 5 about here）
In the 2000 revision, which transferred more power to the LY and further weakened the political power of the NA. Firstly, the NA can only be elected following the LY’s publication of its proposal to amend the Constitution, change the nation’s territorial boundaries, or impeach the President or Vice President. Secondly, the NA can no longer initiate a recall of the President or the Vice President. This right was transferred to the LY. Thirdly, the power to confirm the personnel of the Judicial Yuan, Examination Yuan and Control Yuan were transferred from the NA to the LY. Fourthly, the LY rather than the NA shall hear a report on the state of the nation by thePresident during its annual session. Finally, should the office of the Vice Presidentbecome vacant, the power of electing a new Vice President was transferred from the NA to the LY. The LY was conferred almost all the power that usually belong to Western democratic countries’congresses or parliaments except the right of investigation[11] (調查權). The roles of the NA and the LY in the 2000 amendments can be found in Table 6.
（Table 6 about here）
In the 2005 revision, the NA was totally abolished. Its power of voting on constitutional amendments and the change the nation’s territorial boundaries were transferred to the voters through the use of referendums, and the power to impeach the President or Vice President was transferred to the Grand Justice. Since then, the ROC has only had one congress, that is to say the LY. As a result, the LY has become the only organ that represents the people to exercise the so-called power of politics.
Through the revisions of the Constitution, the LY had gradually changed its constitutional roles. Nowadays, the LY is no longer an organ that possessed the so-called power of governance, and the power-function division principal has finally disappeared. Nevertheless, I am very worried to argue that the LY can effectively counterbalance the President or the EY through the power that the Constitution only gives to the LY. It seems to me that the party composition in the LY is critical to the role of the LY in counterbalancing the President or the EY. In the following parts of this paper, we are going to investigate the roles of the party composition through the analysis of nine typical resolutions, which were dominated by the opposition in the LY.
Party Politics and Its Effects on the LY
Although the constitutional role of the LY had expanded a lot before 2000, its influence upon the EY is still very limited. Before 2000, the ruling party (KMT) simultaneously controlled the Presidency, the EY and the LY, which allowed it to control the LY through the party mechanism. According to the KMT party constitution, although it’s the Central Standing Committee （CSC, 中常會）that is responsible for the final decision-making, the chairman of the KMT who is also the State President, is the highest policy maker who can really mastered the government personnel and policies. During the CSC meeting, which was held each Wednesday morning, even if its members could present their opinions, the final decisions were always made by the Chairman rather than by vote. The decisions made by the CSC would be then become the government’s decisions through the help of the Executive Yuan Council’s weekly meeting（行政院院會）, which was held each Thursday morning. In other words, the KMT could effectively control the government’s personnel and policies through the CSC.
Furthermore, the Central Policy Committee （CPC,中央政策會）under the authority of the KMT’s Central Committee （中央委員會）was responsible for coordinating and commanding the KMT Legislators in the LY. The Director-in-General (執行長) of the CPC was also the party’s whip in the LY, which authorized him to exercise his power and command his colleagues. Before 2000, more than half of the legislators were KMT’s members[12] (see Table 7). The major opposition party’s legislators (DPP) in the LY held no more than one-thirds of the total seats[13]. As a result, most of the decisions made by the CSC could be easily passed in the LY if the KMT insisted on. Moreover, the number of resolutions passed by the LY at each session can tell us something about the role of the LY. Before 1987, the year that martial law was lifted, the average number of laws passed by the LY was 27 (1981-1987); it increased to only 28 between 1988 and 1992 (one year before the Second LY). In the Second LY and the Third LY, this average number increased to 40 and 49 respectively. However, there was a tremendous change starting from the Fourth LY. Before the change of ruling party in May 2000, there were three sessions in the Fourth LY. In average, 96 resolutions were passed at each session, which was the double of the Second and the Third LY. As for the number of resolutions passed at each session, they can be found in Table 7. What are the factors behind this change?
(Table 7 & 8 about here)
Although the ROC President has become elected by direct popular vote since 1996, and President Lee Teng-hui won more that 54 percent of the vote, the KMT’s seats in the LY has decreased from 94 percent in 1987 to 85 percent in 1990, then 63 percent in 1993, 52 percent in1996, and 51 percent in 1999.[14] Here we found a very interesting correlation between the average number of resolution passed by each session of the LY and the seats controlled by the ruling party, that is, the more seats controlled by the ruling party, the less resolutions were passed by the LY. In other word, the fewer seats controlled by the ruling party, the more resolution was passed by the LY. Owing to the KMT’s substantial decrease of seats in 1999, the capacity for the Premier to master the legislative process or results of policies has deteriorated.
Since 2000, the minority government has further enhanced the LY’s power in counterbalancing the President and the EY. Although there were around 100 resolutions passed each session between 2000 and 2004, most of them were related to people’s livelihood. Those statutory or budgetary bills that were related to sensitive political stance were strongly boycotted by the opposition. Moreover, though some resolutions passed by the LY were deemed difficult to execute by the EY, the EY surrendered its right to request the LY to reconsider the bill because the opposition dominated more than half seats in the LY, which allowed them to uphold the original bill. There were many cases where the ruling party was forced to accept the opposition’s resolutions or failed to turn down the opposition’s decision through a request to the LY to reconsider the original resolutions. In other words, we might find that the party composition played an important role in affecting the relationship between the EY and the LY, or the ruling party and the opposition.
Nuclear Power Plant No.4
On October 2000, the EY announced that the Nuclear Power Plant No.4 (NPP4) would be halted, which resulted in serious confrontations between the ruling party and the opposition. The stock market was also seriously affected by this political storm. On November 1997, the DPP ever successful halted the NPP4 budget in the LY; however, the ruling party KMT recovered the NPP4 budget through a request to the LY to reconsider whether a budgetary bill, which has been recovered through reconsideration by the LY, could withhold its implementation based upon change of administration? The Judicial Yuan Interpretation No.520[15] gave its interpretation on this puzzle. However, the Interpretation No.520 failed to provide a clear answer whether the EY’s decision was constitutional. On the one hand, the Interpretation allowed the EY to insist that its decision was constitutional; on the other hand, the Interpretation gave the opposition other reasons to argue that the EY’s decision was not constitutional.
Although the nuclear power plant’s question was a taboo for the DPP, the party finally gave up its decision to halt the construction of the NPP4 and the NPP4’s budget was restored. This was the first and biggest setback that the DPP government ever suffered. The main reason was that the DPP minority government had to restore the construction of NPP4 was that it controlled only one-third of the seats in the LY. In the 1997 Amendment, the threshold to uphold the original resolution was cut down from two-thirds of the members of the LY present at the meeting to one-half of the total number of LY. If the ruling party could dominate more than half of the seats in the LY, it would not be restrained by the LY. The importance of this change was not allowed any attention by the political figures or academic field at the beginning; however, the NPP4 case and other following cases finally proved that this change played the most critical role in restraining the operation of the minority government. In other words, the minority government can hardly reject those resolutions passed by the LY even it deems that those resolutions are difficult to execute.
84-hours-per-fortnight Measure
Another case was the working hours struggle between the ruling party and the opposition. On June 2000, the opposition proposed to revise the Labor Standards Law (勞基法) to shorten the maximum working hours from 48 hours per week to 84 hours per fortnight. However, the DPP government feared that a sharp reduction of the maximum working hours will put too much burden on traditional industries and force them to go bankrupt, which will in turn worsen the unemployment problem. The EY therefore submit another bill by adjusting the workweek to a total of 44 hours. The labor groups insisted that the government implements the 84-hours-per-fortnight measure as originally scheduled. Finally, the Executive Yuan's amendment was blocked by a vote of 83 to 63. Although President Chen could not accept this resolution, the DPP minority government did not even request the LY to reconsider this resolution. If the EY insisted that 84-hours-per-fortnight would hurt traditional industries and bring about more unemployment, why did it give up the right to request the LY to reconsider? It seems that there was only one answer, that is, the EY was sure that it was impossible for the LY to reverse its original resolution. At that time, the opposition controlled more than 135 seats among a total of 225 legislators. It would be very easy for the opposition to uphold the original resolution. In this case, the opposition was on the labor’s side and strongly defended the labor’s demand. It would have been impractical to expect the opposition to reverse their position.
The EY’s setbacks of the NPP4 and working hour’s cases have two implications. The first implication is that the Constitution does play a very critical role in regulating the behavior of the government. Before 1997, owing to he threshold for the LY to uphold the original resolution, which was a two-thirds of the members of the LY present at the meeting, even a minority government that controlled only one-third of the total seats in the LY wouldn’t be necessary willing to accept a resolution that it seemed difficult to execute. With the support of one-third legislator, the EY can easily veto the LY’s resolution. However, the situation had changed after the 1997 Amendment. If the EY wanted to veto the LY’s resolution, it needed the support from one-half of the legislators. In other words, a minority government that failed to control more than half seats can hardly reject the LY’s resolution. This is the reason why the DPP minority government had continuously boycotted the LY. The opposition in the LY not only could reject the government bills that it opposed, but also could forced the EY to accept those resolutions passed by the LY. Consequently, the second implication is that party composition in the LY was critical for us to understand the real role of the LY.
Confirmation of the JY & CY’s Personnel
In the 2000 Amendment, the right of consent to confirm the appointment of personnel of the Judicial Yuan, Examination Yuan and Control Yuan nominated by the President was transferred from the NA to the LY. President Chen, in 2002, nominated two grand justice of the Judicial Yuan and four members of the Control Yuan. However, the opposition succeeded in halting the appointments of one nominee for grand justice and four Control Yuan members. Only former vice premier Lai In-jaw (賴英照) was able to secure enough ballots for his nomination. To counterbalance President Chen’s nomination, all except a few opposition Legislators chose to stay away from the vote in a passive show of disapproval. Although the DPP has become the biggest party in the Fifth LY, with the support of the Taiwan Solidarity Union (台灣團結聯盟), the total seats they can control is only around 100 seats. However, the opposition controls over half votes in the 225 seats and an absolute majority is necessary to confirm each appointee. Lai's confirmation came from his friendly relationship with the opposition. In this case, we found that the opposition in the LY can effectively boycott the President’s nomination, which proved that without the support of the LY, the President could hardly dominate the nomination process.
The Referendum Law
The next case was the Referendum Law (公民投票法) which was passed on November 27, 2003. In this law, the opposition vetoed most of the ruling party’s ideas, denying the Cabinet the power to hold advisory referendums, and excluding the issues of sovereignty, country's name, flag, territory, and country's name, citizens' referendum rights on the nation's major policies and on constitutional amendments. The opposition passed only two clauses proposed by the Cabinet, one was the so-called defensive referendum (防衛性公投), which offers the president the power to initiate a special referendum on changing the country's sovereignty when the country faces external threats to its security. The DPP caucus criticized that the LY had passed a referendum law that restricts people from practicing their referendum power. Premier Yu Shyi-kun decided to request reconsideration. The proposed reconsiderations included Article 16, which empowers the LY to initiate referendums on a vote by a majority of legislators, and a proposal to eliminate the referendum supervisory committee. However, the request was defeated after 118 legislators voted against them which also meant that the LY could veto the Executive Yuan's request.
The March 19 Shooting Truth Investigation Special Committee Statute
The most serious confrontation could be found in the policy-making process of the March 19 Shooting Truth Investigation Special Committee Statute (三一九槍擊事件真相調查特別委員會條例) which was passed in August 2004. The statute says that the committee has the right to investigate all criminal matters relating to the March 19 shooting, and that it will enjoy the power of prosecutors when conducting investigations[16]. The committee is empowered to conduct investigation into the President, the Vice President and anyone else considered relevant. A request by the committee for clarification or assistance cannot be refused, according to the statute. The EY reacted angrily to the passage of this law, calling its contents unconstitutional and vowing to have it overturned. To counterbalance the LY, the EY requested the LY to reconsider its resolution. However, the EY’s request was turned down by the LY on September 2004. A total of 114 lawmakers voted in favor of the statute. The EY expressed regret at the result and vowed to request a freeze of the legislation until the Council of Grand Justices rules on the statute. The DPP appealed to the Council of Grand Justices for constitutional interpretation. However, the DPP's application for constitutional interpretation did not prevent the statute from being signed into law. Nevertheless, the Commission failed to operate smoothly under the circumstance that the ruling party reluctance to provide relative budget and office for it. In other words, the ruling party took the strategy of doing nothing in order to boycott the operation of the Commission and weakened the function of the Commission.
The March 19 statute received a blow when it was declared partially unconstitutional by the Council of Grand Justices Interpretation No.585[17] on December 2004. According to the Interpretation, articles 8 and 13 of the Statute violated the Constitution in their entirety and eight articles should be amended. However, the Council of Grand Justices added that the committee could continue with its reduced powers.
Before the Interpretation No.585, the committee acted as an independent organization with unlimited administrative and judicial authority. However, the Grand Justices classified the committee as an administrative office under the authority of the LY, and asked LY to amend a number of articles to that effect.
To respond to the Interpretation No.585, the opposition tried to amend the original statue. The amendment, presented jointly by KMT and People First Party (PFP,親民黨) caucuses, was passed on April 11, 2006. In accordance with the amendment, the commission can be established in each session of the LY and is granted the right of judicial investigation. The EY criticized that the amendment was not different from the original statute, which was ruled unconstitutional and supported the DPP caucus to file for another constitutional interpretation on the amendment.
In this case, it was obvious that the ruling party could hardly counterbalance the opposition in the LY to prevent itself from those resolutions that were difficult to execute. As a matter of fact, this was the fatality for a minority government when the opposition in the legislature could effectively master more than half seats.
National Communications Commission (NCC)
To abolish the Government Information Office (GIO, 行政院新聞局) which was supposed to be a tool controlled by the EY to manipulate the media for a long time, the opposition tried to replace the GIO by an independent NCC. The bill of the NCC proposed by the opposition was passed at October 25, 2005 by 112 to 98 votes, but the DPP applied once again for a constitutional interpretation.
Before the NCC was set up , the media industry in Taiwan was regulated by the GIO, while the telecommunications industry fell under the authority of the Ministry of Transportation and Communications （交通部）. According to the law, the NCC will be established under the EY as an independent entity. It will be the sole supervisory body of the nation's telecommunications and media industries. The bill specifies that the political parties will nominate 15 candidates for the NCC committee, with each party's number of selections in proportion to the number of seats they have in the LY. The President of the EY will nominate three more candidates, for a total of 18 candidates. An 11-member review committee will then elect 13 NCC members from the pool, with three-fifths of the review committee's consent required. The review committee will be made up of academics and experts recommended by political parties in proportion to each party's number of seats in the legislature. To fill any vacancies that remain if fewer than 13 NCC members are chosen in the first round of the ballot, the consent of one-half of the review committee is needed. The President of the EY will then nominate the recommended NCC members who will be appointed by the State President.
According to this bill proposed by the opposition, the minority government can hardly dominate the members of the NCC and so failed to control the NCC. The EY criticized the NCC because it deprived the administrative rights of the EY to the personnel of the NCC, and thus applied for another constitutional interpretation. Nevertheless, the members of the NCC were later elected by the LY and nominated by the President of the EY, and then appointed by the President.
Confirmation of State Public Prosecutor-General
Hsieh Wen-ding (謝文定) was nominated by President Chen for the post of State Public Prosecutor-General, a position that requires the consent of the LY. However, the opposition vetoed the nominee by a margin of only four votes. The opposition claimed that Hsieh had a strong partisan character and therefore were determined to veto Hsieh's appointment.
According to the Law Governing Legislators' Exercise of Power (立法院職權行使法), to pass Hsieh's nomination, at least one-third legislators had to participate in the vote, and a simple majority of those voting had to vote in favor of the nomination. On April 1l, 2006, there 208 legislators voted, 101 of them approved, while 19 vetoed and 88 cast blank votes, which is effectively the same as casting a veto. Hsieh needed at least 105 "yes" votes to be approved. The Presidential Office expressed regrets over the LY's rejection of Hsieh, saying the confirmation process was full of strong political bias.
In this case, Hsieh was again a sacrificial lamb of the power struggle between the ruling party and the opposition. Without the regulation of party discipline, Hsieh could easily get enough approval votes. However, the opposition’s discontentedness over President Chen was transferred to Hsieh and then failed Hsieh’s confirmation.
Special Arms Procurement Bill
In addition to the above-mentioned cases, the "special arms procurement bill" that amounted NT$610.8 billion (US$18 billion) to buy US arms which has been blocked by the Procedural Committee of the LY from being put on the legislative agenda 56 times since June 8, 2004. Although the EY tried to compromise by substantially cutting the budget to NT$480 billion, the opposition insisted that the budget to buy arms should be listed in the annual government budget rather than the special budget. Under the pressure of the LY, the EY finally approved an arms bill on May 24, 2006 to replace the "special arms procurement bill." The new arms bill was listed as an additional budget item in annual government budget and the stalled "special arms budget" and "special arms procurement bill" were withdrawn from the LY.
The new bill was proposed as a revision of the initial proposal, a NT$480 billion package for the purchase of eight diesel-electric submarines, 12 P-3C Orion maritime patrol aircraft, and three PAC-3 anti-missile batteries. Under the new budget bill, the EY earmarked NT$1.6 billion for purchasing P-3C Orion maritime patrol aircraft, NT$3.6 billion for upgrading PAC-2 anti-missile batteries, NT$200 million for assessing the necessity of submarines, and NT$700 million for building an airstrip on the nation's outlying Tai-ping island.
In this case, it was obvious that the revised arms package was the result of the Ministry of National Defense's (MND, 國防部) incorporation of the LY's objections to the initial package. The opposition in the LY effectively counterbalanced the EY’s special arms procurement bill and special arms budget through its predominance on seats. The opposition not only dominated more than half seats in the LY, but also controlled more than half sets in the Procedural Committee, which allowed the opposition to manipulate the agenda setting in the LY. Under the boycotts of the opposition in the Procedural Committee, any bill of the ruling party that can not be accepted by the opposition will destined to be turned down by the Procedural Committee. It seems that this was deemed a price for the minority government to pay for.
Confirmation of the CY’s Members
In the fifth constitutional amendment, the power of consent of members, president and vice president of the Control Yuan was transferred from the National Assembly to the Legislative Yuan. Therefore, the President of the Republic, with the consent of the Legislative Yuan, shall nominate members, president and vice president of the Control Yuan. According to the Constitution, the members, president and vice president of the Control Yuan should have been replaced in February 2005.
Vice President Annette Lu (呂秀蓮) headed a recommendation panel which was responsible for screening candidates for the President. A total of 188 have been recommended, among them, 107 were self-recommended, 63 were recommended by professional or social groups, and 18 were incumbent ombudsmen who had expressed interest in serving another six-year term in the CY. Therecommendation panel screened all candidates in two stages. In the preliminary stage, 60 candidates were selected from the 188 hopefuls. In the second phase, 40 candidates were chosen from the 60 short-listed names. The list of 40 finalists then was presented to President Chen for his reference in nominating candidates. Finally, President Chen nominated 27 candidates for the 27 Control Yuan seats, as well as for the Control Yuan presidency and vice presidency by mid-December 2004. However, the opposition still boycotted and has refused to review the nomination until now, leaving the Control Yuan without members since Feb. 1, 2005.
There were some reasons that the opposition to boycott the nomination. The first reason was that some of the members[18] of the panel were called in question for their defects on virtues and personality. For example, the candidate of the presidency, Clement Chang (張建邦) was accused of lying on the reason of his step-mother’s passed away. Besides, the other panel member Nita Ing (殷琪) was once investigated by the CY.
Secondly, many of the nominees were considered not up to the expectations of the public. Moreover, the opposition criticized the panel members Clement Chang and Michael Hsiao (蕭新煌) who were recommended to be the candidates of presidency and vice presidency by themselves.
The opposition urged President Chen to reconsider the recommendation panel and submit a new list of nominations to the LY for approval. However, President Chen declined to reorganize the panel or submit another nomination list. As a result, the confirmation of the members, presidency and vice presidency of the CY was fell into deadlock in the LY.
Conclusion
In this paper, we find that Dr. Sun Yat-sen’s “Five-power Constitution”and “power-function division principal”were not fulfilled in the 1946 Constitution. The LY was not at all a governance organ in the Constitution. It represented the whole people and exercised most of the power of politics rather than the power of governance. The LY’s role as an organ exercising power of politics was enhanced through a series of constitutional amendments. Finally, the National Assembly was abolished and the LY became the only legislative organ. As a result, the LY shall be considered the sole organ with the power of politics, as the “Five-power Constitution” did no longer exist.
This paper tried to investigate the changing constitutional roles of the Legislative Yuan in Taiwan through Constitutional amendments and the party compositions in the LY. Before 1997, the Constitution had been amended three times, however, the power and functions of the LY were not changed in these amendments. It was interesting for us to find that the resolutions passed during each session increased from 28 to 40 and then 49. The numbers after 1997 even significantly increased to 96 before the change of ruling party in 2000. It seems that the 1997 amendment did enhance the power of the LY so as to make it more influential in the policy making process. Nevertheless, the average bill passed during each session in 1998 increased from 49 to 55 only. At that time, the ruling party still enjoyed a stable majority in the LY, which allowed it to firmly control the legislative process. In other words, the party composition in the LY might be the factor that restricts the constitution to function perfectly.
However, the situation has started to change from 1999 on. On the one hand, the ruling party only enjoyed a very small majority (50.5%) in the LY, which made it more difficult to master the decision-making process. On the other hand, the total number of the Legislator also increased from 170 to 225. More representatives meant more voice. Furthermore, to cope with the challenge from the DPP in the next year’s presidential election, the ruling party might consider exchanging more bills for the votes. To compromise with the opposition, the ruling party has to accept those bills proposed by the opposition. As a result, in 1999, a year before the change of ruling party, the average number passed in the LY promptly increased to 98 for each session. In this case, the 1997 amendment should contribute somehow to strengthen the power and function of the LY’s. Besides, the change of party composition in the LY also should play a critical role.
The ruling party was changed from the KMT to the DPP on May 2000. However, the DPP has never dominated more than half seats in the LY since 2000. Although the DPP has become to be the biggest party in the LY in 2002, it still failed to master the LY. Even the Executive Yuan can initiate statute and budget; it is impossible for them to be passed without support of the opposition, which dominates more than half seats in the LY. Moreover, the confrontation between the ruling party and the opposition has become more serious than before since 2000[19]. Although competition existed between the KMT and the PFP, which resulted in some feeling of animosity, most of their standpoints against the ruling party were in concert.
It was very interesting for us to find out that the average number of resolutions passed during each session was not reduced but increased to 110 during the period of 2000 and 2001. On the one hand, we found that the opposition did not boycott those bills that were related to people’s livelihood or were of low politics in essence. On the other hand, there were many bills proposed by the opposition. In the Fifth LY, the average number of resolutions passed in each session was maintained at 108 before June 2004. However, owing to the rebound of the pan-blue alliance against President Chen for questioning the righteous of the 2004 Presidential election, the confrontation also increased tremendously. At the same time, we also found that the average number of resolutions passed each session was reduced to 66 during the period of September 2004 and June 2006. These changes on the amount of passed resolution seemed to prove that party composition was indeed meaningful in interpreting the power and function of the LY and the relationship between the EY and the LY.
Although the opposition proposed or supported those low politics bills or bills related to people’s livelihood, it declined to compromise those high politics bills or budget bills with the ruling party. In this paper, we raised some typical cases, which helped us to understand how the opposition that owned the seats advantage in the LY strongly mastered the policy-making process in the LY. Just like what Silk and Walters argues, almost all the Legislators voted along party lines in these cases. As for the No-Party Union, most of its members chose to vote along the opposition lines. The above cased showed that once the opposition can dominate more than half seats in the LY, the executive branch will be very difficulty able to achieve its policy goals on the one hand, and even be forced to accept those bills that it deems difficult to execute on the other hand. The ruling party criticized that the opposition invaded into the jurisdiction that original belonged to the executive branch. However, the minority government could do nothing to turn down those resolutions that it thought difficult to execute but to operate passively in cooperation with the opposition.
Once the pan-blue opposition failed to recall President, under the pressure of its supporters, the opposition might propose a no-confidence vote against the Premier. Although there was still some noise or complaints in the pan-blue Legislators, once the opposition determined to propose the no-confidence vote, the pan-blue Legislators will be forced to vote along the pan-blue lines. Once the no-confidence vote was passed, the Premier shall tender his resignation within ten days, and at the same time may request that the president dissolve the Legislative Yuan. Following the dissolution of the Legislative Yuan, an election for legislators shall be held within 60 days. However, owing to the President and the ruling party’s low satisfaction in the polls, the ruling party’s seats in the LY might be reduced significantly in the following election[20]. If President Chen chooses not to dissolve the LY by appointing other DPP member to organize a new minority government, the opposition has threatened that they will propose another no-confidence vote. It is obvious that the reason why the ruling party faced this dilemma is related to the party composition in the LY. If the ruling party could control more than half seats in the LY, it not only could pass those bills it wants, but also turns down the no-confidence vote or resolutions passed by the LY.
In this paper, we found that the regulation of constitution and the party composition in the LY did affect its power and function in relative to the executive branch. Our proposition that “the more seats in the LY that the ruling party has, the less powerful the LY can counterbalance the Executive Yuan” was proved to be true. On the other hand, whenever the opposition controlled more seats; the less can the ruling party affect the contents or process of the LY, and more resolutions might be passed if there weren’t serious political confrontations between the ruling party and the opposition. The fact that amount of resolutions passed in the period of democratization was more than that in the period of authoritarianism also confirms Liao’s findings that democratization enhanced the power and function of the LY.
Table 1
Compare of the NA’s Role in Five-power Constitution and 1946 Constitution
Roles of the NA Five-power Constitution 1946 ROC Constitution
Elect and recall the State President, Vice State President Yes Yes
Elect and recall the President, Vice President of the LA, Yes No
Elect and recall the President, Vice President of the CY Yes No
Elect and recall the Legislators Yes No
Elect and recall members of the CY. Yes No
Recall Presidents and Vice Presidents of the Judicial Yuan and Examination Yuan. Yes No
Review and modify the Constitution Yes Yes
Initiative and referendum Yes Conditioned
Responsibility over all the Presidents and Yuans Yes No
Change the nation’s territorial boundaries Yes Yes
Table 2
Role of the NA and the LY in 1946 Constitution
Functions and power NA LY
Elect and recall the State President, Vice State President Yes No
Elect and recall the President, Vice President of the LA, No Yes
Elect and recall the Legislators No Elect by the people
Review and modify the Constitution Yes Propose the amendment
Responsibility over all the Presidents and Yuans No Executive Yuan shall be responsible to the LY
General legislative power No Yes
Examination of budgetary bills and audit reports No Yes
Pass bills concerning material law No Yes
Pass amnesty No Yes
Declaration of war No Yes
Conclusion of peace No Yes
Pass treaties No Yes
Confirmation of emergency decrees No Yes
Right of consent No President of the EY
Hearing reports of the EY No Yes
Table 3
Role of the NA in 1946 Constitution and 1992 Amendment
Roles of the NA 1992
Amendment 1946 ROC Constitution
Elect the State President, Vice State President No Yes
Elect and recall the President, Vice President of the CY Approval of the Nomination No
Elect and recall members of the CY. Approval of the Nomination No
Approval of the Nomination of the President, Vice President of the Justice Yuan
Yes
No
Approval of the Nomination of the President, Vice President of the Examination Yuan
Yes
No
Approval of the Nomination of the members of the Justice Yuan Yes No
Approval of the Nomination of the members of the Examination Yuan Yes No
Recall Presidents and Vice Presidents of the Judicial Yuan and Examination Yuan. Yes No
Hear a report on the state of the nation by the President Yes No
Table 4
The Nan’s Role in Recalling the State President, Vice State President
Roles of the NA 1994
Amendment 1992
Amendment 1946 ROC Constitution Five-power Constitution
Recall the State President, Vice State President Propose the recall only
Yes
Yes
Yes
Table 5
The Role of the LY at Different Stages
Roles of the LY 1997
Amendment 1946 ROC Constitution Five-power Constitution
Power to decide statutory or budgetary bills or bills concerning material law, amnesty, declaration of war, conclusion of peace or treaties, and other important affairs of the state
Yes
Yes
No
Way of LY member election By the people By the people By the NA
Legislative Power
LY is the highest legislative organ of the state and exercise legislative power on behalf of the people LY is the highest legislative organ of the state and exercise legislative power on behalf of the people LY is a professional Legislative organ which is authorized by the NA
Propose to impeach the President and the Vice President Yes, and approved by the NA
No
No
Elect the President, Vice President of the LA Yes Yes No
Approval of the nomination of the President of the EY No Yes No
Approval of the nomination of the Auditor General of the CY
Yes
Yes
?
No-confidence vote Yes No No
Threshold of counter-veto One-half Two-Thirds
Table 6
Role of the NA and the LY in 2000 Amendment
Roles NA LY
Propose to amend the Constitution No Yes
Propose to Change the nation’s territorial boundaries No Yes
Propose to impeach the President and the Vice President No Yes
Propose to recall the President
And Vice President No Yes
Approval of amending the Constitution Yes No
Approval of changing the nation’s territorial boundaries Yes No
Approval of impeaching the President
And the Vice President Yes No
Reelection of the Vice President No Yes
Approval of the Nomination of the President, Vice President of the JY, ExY and CY
No
Yes
Approval of the Nomination of the members of the JY, ExY and CY No Yes
Hear a report on the state of the nation by the President No Yes
Table 7
Party Affiliation of Legislators since 1996
Election Year DPP KMT PFP TSU NP Other None Total Seats
2005 89 79 34 12 1 6 4 225
2002 87 68 46 13 1 1 9 225
1999 70 123 n/a n/a 11 9 12 225
1996 54 85 n/a n/a 21 0 4 164
Source: Central Election Commission
Table 8
Resolutions Passed Each Session in LY
Session/Era of LY 2nd LY 3rd LY 4th LY 5th LY 6th LY
6th Session 38 67 199 57
5th Session 38 43 61 75
4th Session 75 45 88 72
3rd Session 17 96 93 88 75
2nd Session 30 30 115 115 86
1st Session 43 14 81 190 46
Sources: http://npl.ly.gov.tw/do/eng/www/ci/sl.【2nd LY, (1993-02-01 ~1996-01-18); 3rd LY (1996-02-01 ~ 1999-01-15); 4th LY (1999-02-26 ~2002-01-18); 5th LY (2002-02-01 ~ 2005-01-24); 6th LY (2005-02-25 ~ 2008-01) 】
（本文文發表於東吳大學政治學系主辦之
International Conference on Pacific Center or Periphery: Legislatures & Parliaments in the 21st Century. July 7-8, 2006.）
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[1] The LY voted 113-96 to have a screening committee begin hearings on whether President Chen be recalled. The committee will hold debates June 21 to discus the recall and vote June 27 on whether to hold a public referendum.
[2] In Ta-chi Liao’s view, even in the hard authoritarian period, the LY is not a rubber stamp. Liao offered it an alternative image as “sleeping lion,” its role will transfer into “awakened lion” and “roaring lion” with the change of the political environment. Ta-chi Liao, “The Transformation of Taiwan’s Legislative Yuan during the Process of Democratization.” Issue and Studies, 41, no4 (September): 31-79. In Liao’s article, she failed to consider the party structure in the LY, which is relatively important for us to examine its role in relative to the EY.
[3] In 2000, there are 225 seats in the LY, however, the DPP hold only 70 seats, less than one-third of the total seats. The DPP government was categorized into minority government or divided government because it failed to control the legislative branch.
[4]Ta-chi Liao, “The Transformation of Taiwan’s Legislative Yuan during the Process of Democratization.” 70.
[5] Paul Silk and Rhodri Walters, 1998, How Parliament Works. 4th edition. New York: Longman. 44-46.
[6] It was said that the DPP’s party discipline is stronger than that of the KMT, however, even in the period of democratization, we found that the KMT’s party discipline was as strong as that of the DPP.
[7] Power of politics is the power of the people to express their demands, resembling to the parliament in cabinet systems, and is represented by the NA. On the other hand, power of governance is the power of administration. The LY was first designed as a branch of governance rather than a parliament. http://en.wikipedia.org/wiki/Three_Principles_of_ the_People
[8] http://www.na.gov.tw/en/intro-en/IntroEnView.jsp? itemid=43
[9] The four rights were election, recall, initiative and referendum.
[10] http://www.ly.gov.tw/ly/en/01_introduce/01_introduce_01.jsp
[11] In the Five-power Constitution, the power of investigation was conferred on the Control Yuan.
[12] In the Second LY (1993-1996), 93 were KMT and 56 were DPP among a total of 165 legislators. In the Third LY (1996-1999), 90 were KMT and 56 were DPP among a total of 170 legislators. In the Fourth LY (1999-2002), 123 were KMT and 72 were DPP among a total 225 legislators. For details, see http://npl.ly.gov.tw/do/www/commissioner?orderBy=name&nameOrder=true&eleDisOrder=false&act=
exp&expire=02&partyName=&keyword1=&keyword=&+%ACd%B8%DF+=+%ACd%B8%DF+
[13] The DPP occupied 34 percent of the seats in the LY in the Second LY, then 33 percent in the Third LY, 32 percent in the Fourth LY.
[14] Ta-chi Liao, “The Transformation of Taiwan’s Legislative Yuan during the Process of Democratization.” Pp.38-39.
[15] The full text of No.520 can be reached from http://w2.judicial.gov.tw/constitutionalcourt/ EN/p03_01.asp?expno=520
[16] In the 2004 presidential election, President Chen and Vice President Lu were hurt by two bullets, which the opposition accused to be directed by the ruling party.
[17] Although the LY shall be the highest legislative organ, the Constitution never authorizes it with the power of investigation. In the Five-Power Constitution, the power of investigation belongs to the Control Yuan rather than the LY. It’s a big surprise for the Council of Grand Justices to create this right for the LY through Interpretation No.585.
[18] Members of the recommendation panel include: incumbent Control Yuan President Fredrick Chien (錢復); Presidential Office Secretary-General Su Tseng-chang (蘇貞昌); Clement Chang (張建邦), a senior adviser to the president; Michael Hsiao (蕭新煌), a national policy adviser to the president; and Nita Ing (殷琪), chairwoman of the Taiwan High Speed Railway Co, who is also an adviser to the president.
[19] The party composition in Taiwan can be classified into pan-green and pan-blue. The former includes the DPP and the Taiwan Solidarity Union (TSU, 台灣團結聯盟), which in sum controlled around 100 seats in the LY. The latter includes the KMT, the People First Party (PFP, 親民黨) and the New Party, which in sum controlled more than half seats in the LY. Besides, 13 seats belong to the Non-Party Union, which used to be prone to vote alone pan-blue lines on most occasions.
[20] In the seventh constitutional amendment, the electoral system for the legislative elections was changed from the current “single non-transferable votes (SNTV, 單記不可讓渡複選區制) into the “single-district, two vote”system (單一選區兩票制), which is unfavorable to the DPP owing to the scandals that seriously hurt its image.
The Changing Constitutional Roles of Taiwan’s Legislative Yuan
作者周育仁
發布日期
