e02_twnews_title行憲紀念日與憲政
Constitution Day and Constitutional Government

薛化元/Hsueh Hua-yuen
2001-12-24


e02_20011224_1224Beginning in 1949, Taiwan was under martial law rule for 39 years.
The martial law rulers’ Constitution-usurping issuance of all manner
of executive orders did great damage to constitutional government.


  一九四七年十二月二十五日,中華民國政府宣佈行憲,然而同年七月所頒佈的動員戡亂體制卻完全沒有因此而停止它的效力。此後雖年年紀念行憲,然實際上的政治體制卻明顯違背民主憲政制度的政治運作。九○年動員戡亂時期的終了與九六年的總統直選、兩千年的政黨輪替雖然證明了台灣在民主政治上長足的進步,整個政府的權力分立制度仍出現矛盾,甚至窒礙難行的狀態,因此有進一步推動憲政改革之必要。本週「台灣歷史之窗」特別邀請政治大學歷史研究所教授薛化元執筆,檢討台灣五十年來憲政發展並進而思考未來整體憲政發展的方向。

  On December 25, 1945, the government of the Republic of China proclaimed the establishment of the ROC Constitution. Nevertheless, the “Period of Mobilization for the Suppression of Communist Rebellion" declared in July of that same year was not thereby in the least abrogated. Although establishment of the Constitution was commemorated every year thereafter, in actuality, the political system thus established violated the operational principles of a democratic constitutional system of government. Although the Period of Mobilization for the Suppression of Communist Rebellion ended in 1990, the first direct popular election of the president in 1996, and the first transition of ruling parties in 2000 have demonstrated a tremendous advancement in Taiwan’s democratic governance, the entire system of division of powers within the government continues to manifest contradictions, rendering it difficult for the government to function effectively, and necessitating institution of constitutional reforms. For this week’s Window on Taiwan, the Taiwan News has invited Professor Hsueh Hua-yuan of the National Cheng Chih University Graduate School of History to examine the development of constitutional government over the past half century and consider possibilities for its future development.


 憲法與動員戡亂體制並行的怪象

  國民政府於一九四五年十月二十五日接收台灣,當時中華民國係在國民黨一黨訓政體制之下,因此台灣就進入了訓政時期。一九四七年發生二二八事件,同年七月國民政府宣布進入動員戡亂時期,以《總動員法》與相關法規為中心,台灣更進入了非常體制之下。雖然一九四七年十二月二十五日,中華民國政府宣佈行憲,然而原有的非常體制卻完全沒有因此而改變,此後政府即在一面宣佈行憲一面仍在動員戡亂體制下並存,而憲政體制無法完全落實,只好一路走來搖擺不定,一直無法上軌道。

Frankenstein marriage of Constitutional law and “
Mobilization for the Suppression of Communist Rebellion"

  On October 25, 1945, Taiwan came into the receivership of the government of the Republic of China. As the Republic of China of the time was ruled by the one-party “practice government" regime of the Kuomintang [envisaged by revolutionary KMT cum ROC founder Sun Yat-sen as a transitional stage of government leading to establishment of a full-blown democratic system], Taiwan thus too entered the “practice phase" of government. In 1947, the February 28 Incident occurred [which sparked a popular uprising against the corrupt KMT administrators in Taiwan, as the consequence of which the KMT rounded up and executed several thousand Taiwanese, including many intellectuals], and in July of the same year, the ROC government declared the beginning of the “Period of Mobilization for the Suppression of Communist Rebellion," taking the General Mobilization Law and related regulations as its foundation, thus placing Taiwan under an “extraordinary system" of governance. Although the ROC government proclaimed the establishment of its Constitution on December 25, 1947, the already-existing extraordinary system did not thereby undergo any change. Thereafter, with the government operating nominally under constitutional law coexistent with a system of Rebel Suppression laws, a truly constitutional system of governance could not be actualized, and the government could merely stagger forward, never able to get on track.


  當然自一九九○年代開始,動員戡亂時期終了,國會全面改選開始,台灣的民主化有長足的進步。一九九六年完成第一次的總統直選,二○○○年更完成了政黨輪替,加上對於言論、出版原有不當限制之規範陸續被大法官會議宣佈違憲之後,人權也有大幅的進展。但縱使如此,整個政府的權力分立制度仍出現矛盾,甚至窒礙難行的狀態,如此自有進一步推動憲政改革之必要。唯憲政之基本問題與原本的憲法規範乃至行憲的一套歷史經驗有密切的關係,因此故,有必要檢討台灣五十年來憲政發展並進而思考未來整體憲政發展的方向。

  Needless to say, with the end of the Period of Mobilization to Suppress the Communist Rebellion in 1990, and the beginning of legislative elections for all seats [in both the Legislative Yuan and the National Assembly], Taiwan’s democratization made a big leap forward. And with the first direct popular election of the president in 1996, the first transition of ruling parties in 2000, as well as the successive decisions of the Grand Justices proclaiming the unconstitutionality of originally existing restrictions on freedom of speech and freedom of the press, human rights also made great progress. Despite these developments, the entire system of division of powers within the government is still rife with contradictions, creating impediments to the effective functioning of government. There remains, therefore, a need to take a step further and push forward constitutional reform. However, inasmuch as fundamental constitutional problems are intimately related to the originally envisaged constitutional norms and to concrete experienced in acting on it, it is necessary to examine and analyze the development of constitutional governance over the past half century, and to then deliberate the direction of its future development in all aspects.


 憲法體制的結構問題

  基本上,中華民國在一九四七年行憲之初,除了面臨動員戡亂體制之外,憲法體制內部的結構即出現嚴重的問題,特別是將原本五五憲草集權於總統及國民大會(類似最高蘇維埃)的民主集中制加以改造,使其成為較合乎民主憲政常規的憲法制度,但是在國民黨強勢主政下,憲法許多原始的設計無法實現,甚至連在政治制度的設計都出現明顯的違憲狀態。如在一九七八年以前,地方法院及高等法院隸屬於行政院之下,即是明顯違背民主憲政的常軌。雖然對明顯違背民主憲政制度的政治運作,一般皆歸咎於《動員戡亂時期臨時條款》體制戕害了憲法本身正常的運作。不過,就歷史發展的實況來考察,卻可以發現其中的問題並非用動員戡亂時期臨時條款即可充分解釋。以下擬先從動員戡亂時期臨時條款著手,釐清過去我國憲政體制發展的根本問題。

Structural problems in the Constitutional legal system

  Basically speaking, at the outset of institution of the Constitution in 1947, besides coming up against the system of government under the Mobilization for the Suppression of Communist Rebellion, the internal structure of constitution manifested severe deficiencies. In particular, although the Constitution constituted a reform of the “democratic centralism" of the original May 5 [1936] Draft Constitution — whereby power was concentrated in the presidency and the National Assembly (similar in function to the USSR’s Supreme Soviet) — in order to transform it into a constitutional system more in keeping with ideal norms of democratic constitutional governance, under the authoritarian rule of the Kuomintang, various provisions of the Constitution could not be implemented, even to the extent that the design of the actual governmental system manifested many blatantly unconstitutional conditions. For example, prior to 1978, district courts and high courts fell under the jurisdiction of the Executive Yuan, very clearly violating the norms of a democratic constitutional government. Although with regard to such an obviously unconstitutional modus of political operations, most observers have blamed the Mobilization for the Suppression of Communist Rebellion Provisional Act for wreaking havoc on the normal functioning of Constitutional law itself, when examined in the light of the actually circumstances of historical development, it is found this problem cannot be fully explained in terms of the Provisional Act. Below, we begin with the Provisional Act in an attempt to clarify the fundamental source of problems in the development of our country’s system of constitutional governance.


臨時條款:主政者權力擴張的橋樑

  一九四八年第一屆國民大會制定了動員戡亂時期臨時條款,就其內容而言,主要是規定總統在行政院院會通過的條件下,可以實施緊急處分不受到憲法原始規定及《緊急命令法》之限制。此舉固然有行政機關擴權之虞,然而此一條文僅在一九四八年金圓券改革、一九五七年八七水災時、一九七八年美國宣佈與中華人民共和國建交及一九八八年蔣經國總統過世時曾經動用,在現實運作的層面對憲政體制正常的發展沒有構成持續而根本的傷害。

The Provisional Act: Vehicle for expanded powers of government leaders

  The First Session of the National Assembly convened in 1948 enacted the “Mobilization for the Suppression of Communist Rebellion Provisional Act." In substance, its articles stipulated that, under the condition of approval by the a General Meeting of the Executive Yuan, the President could declare emergency measures not subject to the original limitations of constitutional law or by the Emergency Edict Law. While this action was worrisome for its expansion of executive powers, this legal act was directly employed only a few times — at the times of the currency reform of 1948, the August 7 flood disaster of 1957, the U.S. recognition of the People’s Republic of China in 1978, and the death of President Chiang Ching-kuo in 1988. In terms of actual governmental operations, it did not inflict any ongoing, fundamental harm to the normal development of constitutional governance.


e02_20011224_1224_1In 1986, Cheng Nan-jung launched a “May 19 Green Action,"
in the course of which several hundred people confronted police
for 12 hours at Lungshan Temple, demanding the end of martial law
and protesting enactment of the National Security Law.


  而在《臨時條款》制訂後,中華民國政府遷台由於國民大會代表人數不足,根本無進行修憲與更改《臨時條款》的可能性。一九六○年蔣中正總統基於連任之需要,因而進一步傷害了憲政的發展;一九六○年先以司法院大法官的解釋大幅降低國民大會代表總額,以進行《臨時條款》之修改,使蔣中正總統得以一再連任至過世為止。此舉破壞了原本憲法限制總統連規定。更重要的是,此例既開,一九六六年《臨時條款》的變動對憲政體制就構成了更進一步的傷害。其中包括總統可以成立動員戡亂機構,而以國家安全會議為中心建構由總統主導的國家行政體制,大幅擴權成為太上行政院,並且授權總統可以調整中央行政、考試機關的組織及職權,使得其權力達到空前。

  But after passage of the Provisional Act, due to the insufficiency of the number of National Assembly members after the ROC government’s removal to Taiwan, there was no possibility of [legally] amending the Constitution or altering the Provisional Act. In 1960, with the need to justify serving an additional term of office, Chiang K’ai-shek further damaged the development of constitutional governance: In that year, based upon an interpretation of the Judicial Yuan Grand Justices, the number of legally stipulated National Assembly members was greatly reduced in order to carry out revision of the Provisional Act and to enable the president to serve additional terms of office until his death, thus sidestepping the constitutional limitation on the number of consecutive terms of office of the president. More significantly, with the establishment of this precedent, a revision of the Provisional Act in 1966 further undermined the system of constitutional governance, empowering the president to set up a special organization for mobilizing to suppression rebellion, thus establishing a national administrative system centered upon a president-led National Security Council granted plenary powers superior to those of the Executive Yuan, and authorizing the president to make changes in the organization and powers of administrative and civil service examination agencies, therein giving the president unprecedented power.


  原本憲法的規範,遭到了嚴重的傷害,雖然同時也賦予在台灣舉行所謂第一屆中央民意代表增選、補選,讓台灣本土菁英得以相當少數地進入中央民意機構,整體而言卻僅是聊備一格,改革的意涵相當有限。

  Although along with this severe damage to the original constitutional order, provisions were made for the so-called “First Election of Supplemental and Replacement Legislative Representatives" [“supplemental" referring to election of additional legislators representing local Taiwan districts; “replacement" referring to election of new legislators replacing deceased legislators nominally representing districts in mainland China], thus enabling a small number of local Taiwanese elite to enter into the national legislative organization, this representation constituted a miniscule force within the overall order, and the reformative significance of these provisions was quite limited.


   一九七二年最後一次臨時條款的修正雖然建立了中央增額民意代表的制度,但從此卻也賦予中央民意代表持續行使職權的憲法位階明文依據,臨時條款體製成為台灣在推動國會全面改選等政治改革之時必須先剷除的絆腳石。不過,從另一個角度來看,此種憲政體制受到的破壞至少還有相當於形式上憲法規範的依據。更嚴重的是,當時憲政體制之所以受到傷害的最重要原因,在於執政者完全沒有法律依據,甚至以行政裁量濫行侵奪。

  Although the final 1972 revision of the Provisional Act established a system for supplemental legislative seats, it nevertheless also set a legal precedent for granting unlimited terms of office to the legislative representatives of mainland China constituencies. The Provisional Act thus became the major impediment at the time Taiwan was endeavoring to institute new elections for all representatives. From another point of view, however, it may be said that at least, this damage to the system of constitutional governance still retained a semblance of being based upon constitutional norms. Of more serious concern was the fact that at that time [1972], the greatest source of damage to constitutional governance was the tendency of government administrators to do as they pleased with no legal foundation whatsoever, employing their administrative deliberations to rampantly usurp the law.


  就此一面向而言,前述高等法院與地方法院隸屬行政院即是明顯的違憲。而一九五九年大法官會議正式解釋此一體制違憲之後,執政者竟然置之不理。此外,如中華民國憲法所規定的地方自治,執政黨悍然在沒有任何依據的情況下排除憲法的規範,而以行政命令和行政裁量的方式,來推動其心目中(形式上)的地方自治。此種執政者以自身的政治判斷及主張,全然不顧制度所導致的憲政傳統,或許才是在紀念行憲紀念日之時,更應該面對與批判的歷史遺產。

  With respect to this phenomenon, the aforementioned treatment of district and high courts as being under the jurisdiction of the executive branch is a particularly egregious unconstitutional arrangement; and even after the Grand Justices formally interpreted it as unconstitutional in 1959, the power holders totally ignored it. Moreover, as in the case of the question of local autonomy stipulated by the ROC Constitution, the ruling Kuomintang stubbornly, and without the least legal justification, jettisoned the stipulations of constitutional law, employing administrative deliberations and decision-making and executive directives to institute its own, nominal version of “local autonomy." Perhaps it is this style of administrative action, based solely upon the rulers’ personal judgements and opinions, utterly ignoring any systematic constitutional tradition, which is the historical heritage that should be confronted on the occasion of Constitution Day commemoration.


 「量身裁衣」的修憲過程

  相對地,一九九○年以後的憲政改革在某種程度上終結了《臨時條款》體制,使動員戡亂走入歷史,並使民主成為可能,對台灣憲政發展而言固有相當正面而不容抹殺的貢獻。不過,在歷次修憲過程中,「量身裁衣」的狀況仍然屢見不鮮,特別是「精省」與國民大會改革方面都留下了尚未完成的「尾巴」,有待進一步改革。而政府體制方面問題更為嚴重,權力分立制衡及權責分明的憲政制度依然沒有建立,引進所謂的雙首長制度,也未能注重到國外原本的憲政設計,而缺漏甚多,甚至形成我國的憲政危機。

The patchwork alteration process of constitutional amendment

  On the other hand, although post-1990 constitutional reforms have to a certain extent ended the system of government mandated by the Provisional Act, making the “Period of Mobilization for the Suppression of Communist Rebellion" a thing of the past and making democracy feasible, and despite having indeed made a positive and undeniable contribution to the development of constitutional government in Taiwan, over the course of successive amendments to the Constitution, willy-nilly patchwork alterations have been the rule. In particular, downsizing of the Taiwan Provincial Government and reform of the National Assembly have still left us with lingering “rump issues" to deal with, requiring further reforms. And the question of government structural organization is even more critically in need of attention, inasmuch as a system of balances of power and a constitutional system of governance with clear distinctions of authority and responsibility have yet to be established, bringing into existence a so-called “dual head-of-state system" still unable to live up to the constitutional system design of its foreign originators while leaving many legal gaps unfilled — even to the extent of posing a constitutional crisis for our country.


 建構合乎台灣需要的憲政體制

  雖然如此的憲政狀態是有其歷史的包袱及背景,但進一步思考憲政改革之時,如何思考及抉擇權力分立的民主憲政常規也是不容忽視的重要議題。特別是長久以來台灣在國家領域與憲法領域出現嚴重落差的狀況下,未能建立一部以台灣為主體的憲法體制是台灣憲政發展的根本問題。未來若是要進一步推動憲政改革,必須從此入手。以台灣為主體,由國民行使制憲權,建構合乎台灣需要的憲政體制,揮別過去「憲政傳統」的包袱,才是可大可久之途。

Establishing a system of constitutional government in conformance with Taiwan’s needs

  Regardless of whatever historical baggage has contributed to the present state of constitutional governance in Taiwan, it is of critical importance to go a step further and consider, with respect to reform of constitutional government, how we should go about deliberating and making decisions about standards for a democratic constitutional government with proper divisions of power. In particular, the longstanding serious discrepancy between our country’s actual territorial sovereignty and its constitutionally defined territorial sovereignty, which has made it impossible to establish a Taiwan-based constitutional system of government, is a fundamental problem confronting the development of constitutional government in Taiwan. If we are to proceed further with constitutional reform, it must start out with this issue. Treating Taiwan [rather than a mythic “one China"] as its subject, acknowledging the Taiwan people as being empowered to determine the content of the Constitution, building a system of constitutional governance in conformance with Taiwan’s own needs, and bidding adieu to the baggage of the old “constitutional government tradition" constitute the sole viable path to a comprehensive, long-lasting resolution of the ills of constitutional government in Taiwan.


 Compiled and edited by Tina Lee/Translated by James Decker
(李美儀編輯/曹篤明翻譯)