中華民國憲法及政府精選片段 (The Constitution and Government of the Republic of China Highlights w/ Eng Sub)
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中華民國憲法及政府精選片段 (The Constitution and Government of the Republic of China Highlights w/ Eng Sub)

August 26, 2019


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

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