Taiwan's Branches of Government


November 1, 1997




The presidential system of constitutional democracy, like that in the U.S., has three traditional branches: the legislative branch, the executive branch and the executive branch. Instead of three branches the Republic of China's (known internationally as Taiwan) system has between five and seven branches, depending on how one wishes to classify them.


The Legislative Yuan


The first is the Legislative Yuan, which consists mostly of members who are elected from separate voting districts and who serve three-year terms. Their duties are the usual legislative duties of passing laws and overseeing administration. Legislators have power to recommend impeachment of the president to the National Assembly (see below), subject to a two-thirds majority. There is no limit on the number of terms a legislator may serve.


The President of the Republic and the Vice President


The second is the executive branch, which consists of two constitutionally distinct entities. Instead of having a single president, there are actually two chief executives: the President of the R.O.C. and the President of the Executive Yuan. The President and Vice President of the R.O.C. are jointly elected by popular vote for a term of four years. The R.O.C. President's main tasks are as follows. First, he directs international relations, including the use of the armed forces. Second, he appoints the President of the Executive Yuan and he nominates members of other branches of government, including the members of the Control Yuan, the members of the Examination Yuan, and the Grand Justices of the Judicial Yuan. The nominated members must then be approved by the National Assembly.(see below) Under the 1997 constitutional amendments, he also appears, to have the unilateral power to dismiss all appointees. (Article 2 of the 1997 Amendments says that Presidential orders to appoint or remove appointed personnel do not require a countersignature by the President of the Executive Yuan. It also negates an article in the previous constitution which required approvals from other ministers.) Third, following the 1997 amendments, he has the power to dissolve the legislature (a) if the legislature decides to demand the resignation, by majority vote, of the President of the Executive Yuan and (b) if the President of the Executive Yuan asks him to do so. The amendments have taken away the President's veto power over legislative bills. Thus, under the current constitution, the President has no law-making power.


The Executive Yuan


The third possible branch is the Executive Yuan, which is defined as the highest administrative organ of the state. The Executive Yuan President is appointed by the R.O.C. President. His duty is to enforce the laws passed by the Legislative Yuan. Prior to the 1997 amendments, he had the effective power, with the approval of the R.O.C. president, to veto legislation by refusing to enforce a bill unless a two-thirds majority of the Legislative Yuan approved it. Now, however, although he can delay enforcement by asking the Legislative Yuan to reconsider, only a simple majority of the legislature is needed to uphold the original bill. The constitution commands the President of the Executive Yuan to enforce the bill or resign.


The constitution lists no terms of office for the Executive Yuan President. Since he is the R.O.C. president's appointee, he presumably serves at the President's wishes. In accord with this, his term of office presumably expires at the same time as that of the R.O.C. President.


The Judicial Yuan


The fourth possible branch is the Judicial Yuan. It consists of two distinct parts. The first is comprised of fifteen Grand Justices,(1) who are nominated by the R.O.C. President, subject to the consent of the National Assembly (discussed below). Their duties are (1) to interpret and remove inconsistencies in the constitution and (2) to settle jurisdictional disputes involving the national and local governments.(2) They may either initiate interpretations on their own or respond to requests from other branches of government. A third duty added in 1994 is to dissolve political parties that threaten national security. According to a 1997 amendment, a "political party shall be considered unconstitutional if its goals or activities endanger the existence of the Republic of China or the nation's free and democratic constitutional order."(article five) The Grand Justices do not function as a court of appeals, as in the U.S.


According to a 1997 constitutional amendment, beginning in 1008, Grand Justices will serve for eight years and are not eligible for consecutive terms. Exceptions are the President and Vice President of the Judicial Yuan, who can be dismissed at any time by the President of the R.O.C., who appointed them as such. At present Grand Justice terms are nine years. The purpose for the eight-year terms is apparently to have approximately half of the Grand Justices appointed by the existing President of the R.O.C., while the others will have been appointed by the previous President. Of course, if a President serves two terms, he will have appointed all of the Grand Justices who serve during his second term. This suggests that in terms of its functions of interpreting the constitution and settling jurisdictional disputes, it is unlikely to function as an independent branch. One might argue on this basis that, under the amended constitution, the President of the ROC now has additional powers to cause favorable interpretations of the constitution and to determine jurisdictions.


The second part of the Judicial Yuan is the hierarchy of national judges who handle criminal and civil cases. As the result of legislation, there are three levels in the hierarchy: a lower court, a court of appeals, and a court of highest appeal. According to law, judges in this part of the Judicial Yuan are hired for life through a civil service examination, although they can be removed from office if they have been "subjected to disciplinary measures."


The National Assembly


The fifth political entity that might qualify as a branch of government is the National Assembly. The original 1946 Assembly consisted of more than 1,000 representatives who, during a time of civil war, were elected from different voting districts in Mainland China, including Taiwan. With the exception of newly elected representatives from Taiwan, the living original members continued to serve on the more or less defunct National Assembly during the forty-five years of martial law. Finally, they were replaced by assemblypersons from only Taiwan as the result of a second election held in 1991. From 1991 to 1997, the National Assembly has been elected every four years from voting districts in Taiwan.(3) Now, as a result of a 1997 constitutional amendment, about a fourth of the approximately 400 members are appointed by their political parties through a formula for proportional party representation. The National Assembly originally had the task of electing the R.O.C. President. Under the 1994 amended constitution, however, the President is popularly elected. The National Assembly now has three major tasks: (1) to make presidential impeachment and removal decisions,(4) (2) to vote on amendments to the constitution, and (3) to approve or disapprove of the President's nominations for Grand Justices of the Judicial Yuan, the President of the Executive Yuan, the top officers of the Examination Yuan, and the members of the Control Yuan (discussed below). It also has some minor tasks, including (4) electing a Vice President of the R.O.C. if the office becomes vacant, (5) discussing national affairs and (6) offering counsel on such affairs. National Assembly members face no limit on the number of terms.


The Examination Yuan


In addition to these five possible branches, Taiwan has an Examination Yuan whose task is to administer civil service examinations and decide employment matters, including discharge and salaries. The President and Vice-President of this branch are nominated by the R.O.C. President subject to the approval of the National Assembly. The Constitution contains a rather strict provision that says that no person shall be appointed to public office unless he is qualified through examination. Like other parts of the Taiwan constitution, this provision has not been fully clarified or tested. Especially missing are definitions of "qualified" and "public office." However, the intent of the constitution seems to be to eliminate patronage. Like the Executive Yuan president, the President and vice-President of this Yuan appear to serve at the pleasure of the President of the R.O.C.


The Control Yuan


Finally there is the Control Yuan. The 1946 Constitution specified that members were to be elected by district and municipal councils. A 1992 amendment, however, changed this. Now twenty-nine members are appointed by the President, subject to approval by the National Assembly. Their task is to monitor public officials and to recommend corrective measures or criminal prosecutions if they believe it is appropriate. The Control Yuan used to have the power to impeach all public officials, including the President and Vice President of the R.O.C. However, the 1992 constitutional amendment transferred the impeachment power over the President and Vice President to the National Assembly.


Members of the Control Yuan serve a term of six years and there are no rules regarding reappointment. It is also not clear whether a member can be fired by means of an executive order. The reason for six-year terms is not evident. Such a length raises the possibility that the party in power would appoint a Control Yuan that continues to serve during the entire period of a challenging party's tenure, subject to the possibility that a new President could fire the Yuan by an executive order. A provision of the constitution specifies that the members "shall be beyond party affiliation and independently exercise their powers and discharge their responsibilities in accordance with the law."(1997 amendments, article 7) It is not easy to see how such impartiality can prevail in practice.


How Many Branches?


Given the way in which appointments are made to various Yuan, it might be reasonable to say that Taiwan has four branches of government: (1) the National Assembly; (2) the President's executive branch, including the Executive Yuan, the Examination Yuan and the Control Yuan; (3) the Legislative Yuan, and (4) the Judicial Yuan.(5)




Notes


1. This number will change to fifteen in 2004 in accord with a 1997 constitutional amendment.


2. Until recently, jurisdictional disputes were settled within the ruling party. Before 1986, no other party was legitimate. Although the ruling party lifted martial law in 1987, members of the ruling party won the major provincial and local government posts -- the Taiwan provincial governor and the mayors of the two major cities (Taipei and Kaohsiung) -- in the subsequent election. In 1994, however, an opposition party member was elected mayor of Taipei. As a result, jurisdictional disputes have begun.


3. Technically, the R.O.C. includes not only the island of Taiwan but also a number of surrounding islands.


4. There are two methods of impeachment and the National Assembly has a role in each. In the first, the legislative Yuan submits a petition for impeachment. If two-thirds of the delegates approve, the impeached individual is dismissed. In the second, it initiates the impeachment itself by a two-thirds majority. The impeachment must be ratified by a majority of voters in a nationwide poll, subject to the condition that more than one-half of the electorate participates.(Article 2, paragraph 9, of the 1997 amendments)


5. Another point that should be mentioned is that the Constitution regards Taiwan as a province. The Republic of China (R.O.C.), whose nominal jurisdiction includes all the provinces of mainland China, is regarded as the national government. This strange situation is apparently the result of a continuing wish by many Taiwan citizens that the R.O.C. constitution, or some variation of it, will someday be adopted by a reunited Taiwan and Mainland China. Following the decision in 1997 to eliminate the post of provincial governor, to considerably downsize the provincial bureaucracy, and to sell off assets; the once influential provincial government is now totally under the control of the Executive Yuan and President of the R.O.C. Continuing to call Taiwan a province seems to have little practical relevance.





Copyright 1996 by James Patrick Gunning

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J. Patrick Gunning

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