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Guest Post: Constitutional Aftermath of Taiwan's Typhoon

Typhoon Morakot, now known as Taiwan's Katrina, brought not only a catastropic flood but also a political avalanche to Taiwan. Public criticism toward the government's disordered, too-slow rescue efforts is giving rise to anger against President Ma, blaming him for his inaction, wooden qualities and incompetence as leader of the nation. One can also understand this as a constitutional issue: why did President Ma, a Harvard Law School graduate who won an overwhelming victory in last year's presidential election and will soon take office as chairman of the ruling party, fail to use his emergency powers to deal with a national emergency?

The answer is has to do with Mr. Ma's constitutional theory, which has shown some similarity with constitutional practices under the authoritarian regime. As background, Taiwan’s system is semi-presidential, in which the president supervises five branches of government, including the Executive Yuan. In practice, the president has himself exercised extensive political authority, particularly in the four decades of dictatorship that began to end in the late 1980s. The president did so through martial law and a ‘temporary’ suspension of parts of the constitution.

It seems that Mr. Ma was deeply impressed with the model created by his political mentor, the late President Chiang Ching-kuo. During Chiang's presidency (1978-88), the president was an authoritarian leader holding exceptional powers, and thus had to show self-restriction in order to avoid appearing to run an unmanageable dictatorship. In his ten years in office, Chiang only appointed two premiers who were both technocrats, and gave them ample discretion. Leaving executive power to the premier and cabinet also advances a formalistic rule of law, for the constitution of 1946, as partly amended after 1991, vests the executive power in the Executive Yuan, the cabinet. It is not strange for Ma to imitate Chiang's practice due to his sympathy to the late president's style and his preference for rule of law formalism.

Moreover, as president of a post-authoritarian new democracy and successor of the old authoritarian regime, Ma has more reasons to refrain from exercising his legal emergency powers: he has to prove that the old days will never return again. Unlike former President Lee Teng-hui, Mr. Ma, who is a mainlander and elite technocrat loyal to KMT, is has the burden of showing that he is a democrat; part of the population deeply distrusts him, suspecting that he will "sell" Taiwan to China.

Mr. Ma has followed what he learned from Chiang to the extent it fits for a democracy. He appointed a technocrat as premier and trusts him with discretionary powers, treating him not as subordinate but partner. He has been temperate in exercising his emergency powers and refuses to exploit the national security council as a second government. Together, using these two institutions would enable the president to suspend the law enforcement and act without statutory authorization. In the end of authoritarian period, the opposition attacked both, arguing that the scope of president's emergency power should be narrowed and the NSC is unconstitutional (NSC was "legalized" by the constitutional amendment in the 1990s).

Moreover, Mr. Ma’s somewhat passive approach also draws on his experience as mayor of Taipei. During his term of office (1998-2006), Ma avoided being a "unitary executive", instead restricting his role to that of an adjuster or coordinator above the bureaucratic fray. He has not changed his role even after becoming the president. Unlike Chiang and Lee, Ma is neither a political strongman nor a charismatic leader. He also lacks the skills as a professional politician of former President Chen, his notorious predecessor. For Ma it is natural to pursue a self-restricting presidency.

However, Mr. Ma may underestimate the constitutional transition that occurred during Taiwan's democratization. Through the constitutional amendments in the 1990s, former President Lee gave the presidential system formed in authoritarian period a democratic basis and renewed the regime of emergency powers. During his presidency (1988-2000), Lee had made Taiwan a centralized state and her president the only representative of legitimate, unlimited power of the sovereign people. As to the matter of emergency, the new constitutional canon is that the president is the unitary executive who acts through the NSC. The divided municipalities and counties have no ability to cope with such a devastating natural disaster. Nor the cabinet can respond to such an emergency unless its efforts are endorsed by the president. Only the president, by invoking his national security powers, can provide military personnel and justification of government action needed in a national emergency. It is impossible for any Taiwanese president to ignore the new canon. The ongoing tragedy shows Taiwan lacks an effective and self-directed bureaucracy that is the precondition of Ma's self-restricting presidency; on the contrary, Taiwan's bureaucracy is, as it was in the authoritarian era, heavily dependent on pressure from the top. This may be one of the reasons the present constitution favors presidential to parliamentary government.

President Ma's failure indicates the difficulty of a national leader to properly use his constitutional emergency powers in a post-authoritarian democracy. In Ma's case, unfortunately, he is running out of time to learn.

--Tokujin Matsudaira, Research Fellow, Hitotsubashi University, Tokyo

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