Taiwan Today

When a nation with an indigenous civilization comes into contact with a foreign culture and adopts any of the foreign institutions, it will often so amalgamate the old and the new as to produce a peculiar characteristic in the synthetic product. That is precisely the reason why in the Constitution of the Republic of China there is, side by side with the Legislative Yuan, a Control Yuan invested with the power of impeachment. In ancient China the censorial power was divided into two classes: one which dealt with questions of law belonged to the office of Yu Shih (御史) and the other which dealt with questions of policy belonged to the office of Chien Ni Da Fu. (諫議大夫) The same distinc­tion was first made in Europe early in the 19th century. In China, however, a vague distinction existed in the Chin (221-207 B. C.) and Han (202 B. C.-220 A. D.) Dynasties. A sharp demarcation of the two powers has been clearly drawn ever since the Sui (589-618 A. D.) and Tang (618-907 A. D.) Dynasties. The distinction, according to the words of Mr. Hung Mai (洪邁, Sung Dynilsty) as quoted in Wen Shien Tung Kao (文獻通考), was as follows: "Yu Shih is in charge of investigating of­ficial corruption and maintaining law and discipline in the Government. Officials with expostulatory duties, Chien Ni Da Fu, are there to warn, to admonish, and to remonstrate with the Throne in matters relating to administrative defects, the incompetency of public officials from ministers of state down to minor office-holders, and any mismanagement on the part of the three Ministries and other government office." (Wen Shien Tung Kao, Bk. 53, Section on "Yu Shih" quoting Yung Chai Random Notes容齊隨筆). Accorciling to Mr. Hu Chih-tang (胡致堂), the distinction between the two censorial duties was as follows: "The duty of Yu Shih is only to impeach the corrupt officials and those who have deviated from the established law. As to matters about governmental policies, the responsibility rests on the shoulders of ministers of state and officials with expostulatory duties." (Wen Shien Tung Kao文史通考, Bk. 50, quoting Hu's Memorial to the Government.) It is thus evident that the power of impeachment was vested in the hands of Yu Shih, and it was the duty of Chien Ni Da Fu to give expression to something like the parliamentary vote of non-confidence. Both of these ancient offices, however, differ from the modern practice in two respects: first, both the power of impeachment and the vote of non-confidence in a modern democracy are exercised by the legislature, but the two functions were exercised in ancient China by two separate offices; secondly, the organ which exercises both the power of impeachment and the vote of non-confidence in a modern democracy is a popularly elected assembly, but in ancient China both powers were exercised by government officials. These differences have arisen owing to differences between Chinese and Western political philosophies. Though both Chinese and Western philosophers aim at the attainment of a rational political order, their views differ as to "What is rational?" and "How to make things rational?" To Western philosophers the criterion of rationality is the will of the general public: whatever the general public considers rational is rational. To ancient Chinese thinkers, however, only the opinion of experts should be regarded as conclusive. It is doubtful which of the two theories is nearer the truth. If what the general public regards as rational is not necessarily so, neither is the opinion of the expert entirely infallible. It is probably necessary for us first of all to point out how governmental policies were formulated in ancient China before we proceed to discuss how Chien Ni Da Fu carried out his duties. There was no popularly elected legislature to represent the people. In other words, there was in ancient China no deliberative assembly, as we know it today. Court meetings, called Ting Ni (廷議) in Chinese, were usually held for deliberative purposes whenever questions of policy arose. Participants in Ting Ni consisted of five groups of men. First, there were the incumbent ministers of state who were familiar with the current situation because of their official responsibilities. Secondly, there were the elder statesmen who were well acquainted with the history and traditions of the country. Thirdly, there were gov­ernors, magistrates, and other heads of local governments in the vicinity of the capital who were familiar with local conditions. Fourthly, there were the Da Fu who were well-read scholars and eloquent speakers. Fifthly, there were the Poh Shih (博士), or Doctors, with a profound knowledge of history and contemporary affairs. The first three groups were men of experience, while the last two were men of knowledge. Men of experience are likely to over-emphasize practical matters, and men of knowledge empty theories. It is only by the assembling of both kinds of men in one forum that practical reality and theoretical ideals can be successfully harmonized and a workable solution to current problems be found. It is therefore clear that the court deliberations, or Ting Ni, in ancient China did not represent the interests of any particular social group or class of people. They were rather discussion meetings in which men of knowledge and experience sat together to exchange views and opinions with the object of formulating feasible and rational policies. In Court meetings the opinion of the majority was sometimes adopted when arguments were sharply divided. For instance, when General Chao Chung-kuo (趙充國) of the Han Dynasty petitioned the Throne to adopt the policy of troops settlement in his expedition against Sichiang (西羌), his recommendation was submitted for three times and each time the Emperor handed it down to the Court meeting for discussion. His biographer records, "The first time there were three-tenths in favor of General Chao's recommendation, the second time five-tenths, and the third time eight-tenths. Thereupon, the Emperor caused a reply to be given to General Chao, saying; 'We agree with your recommendation, for it is an excellent plan.' " But the above instance was rather an exception. In general, most decisions were made on the strength of expert opinion. For example, during the reign of Emperor Yuan (元帝) (48- 33 B. C.), the Tartar chieftain Huhanshea (呼韓邪), who had recently acknowledged Chinese suzerainty, requested that he be allowed to keep the land on the northern border lying to the west of Shangku (上谷), and that, as there would be no more fear of border incidents, the Chinese garrison then stationed there be withdrawn so that His Majesty's people might enjoy a period of tranquillity and peace. This request was handed down to the officials for discussion, and the officials concerned were in favor of granting the Tartar chieftain's request. But senior secretary named Hou Yin (侯應), who was a specialist in border affairs, objected to the officials' recommendation. When the Emperor asked for the reasons of his objection. Hou replied by listing ten propositions which convinced the Emperor of the soundness of his argument. Thereupon, an Imperial edict was issued ordering that the question of the withdrawal of the Chinese garrison be taken off the agenda. A somewhat similar case is the following. Early in the reign of Emperor An (安帝) (100-125 A. D.), there had occurred a revolt in the Western Regions. As those Regions were too distant, communication was inconvenient, and reinforcements were difficult, the Court had decided to abandon China's suzerain rights over them and to withdraw the Chinese Viceroy. But when Tsao Tsung (曹宗), Governor of Tung Huang (敦煌), attacked the Tartars in 119 A. D . the Western Regions were reconquered. A Court meeting was therefore held on the order of Empress-Dowager Teng (鄧太后) to discuss the new situation that has just developed, and Pan Yun (班勇), the worthy son of Pan Chao (班超), the great explorer of the Western Regions, was specially called in to express his opinions on the subject. It turned out that most of the Court officials were in favor of closing up the Yu Men Pass (玉門關) and abandoning again the Western Regions except Pan Yun who repeatedly insisted that the reconquered land be retained in China's hands. Finally, Pan Yun's opinions prevailed, and a deputy commander's headquarters was set up at Tung Huang with a battalion of three hundred soldiers to watch over the re-annexed territory. It is obvious from these two instances that in court meetings different opinions on a proposed line of policy were generally weighed instead of being numerically counted, and that expert opinions frequently prevailed over those of laymen. Since Chien Ni Da Fu took part in all Court meetings, he naturally had the right to be heard. But even if no Court meeting was held, he could still advise the Throne on any policy which he considered to be unwise and could request the dismissal of any minister of state whom he deemed to be responsible for the wrong policy. It is therefore clear that it was the function of Chien Ni Da Fu to criticize governmental policies and to serve as a check on the ministers of state. Since the Sui (589-618 A. D.) and Tang (618-907 A. D.) Dynasties, the institution of Court meetings had undergone some modifications. The right to criticize and argue over govern­mental policies gradually fell into the hands of ministers of state, and the office of Chien Ni Da Fu was subordinated to Meng Hsia Sheng (門下省), one of the three Ministries, the other two being Chung Shu Sheng (中書省) and Shang Shu Sheng (尚書省). These were the highest governmental organizations, each one of which was responsible for some specific duty: the function of Chung Shu Sheng was to draft imperial decrees and mandates; that of Meng Hsia Sheng to discuss them and pass on their desirability and practicability; and that of Shang Shu Sheng to look after their execution. These functions have been concisely summed up in the following paragraph: "The three Ministries have been established in comparatively recent times. The system works in this way: Chung Shu Sheng takes the initiative in formulating policies and submitting them to Meng Hsia Sheng for consideration. If the proposals are considered to be unsuitable, either amendments are made on them or the proposals are sent back for re­-drafting. But if they are considered to be suitable, they are approved and returned to Chung Shu Sheng. Then the latter transmits the document to Shang Shu Sheng which, in its turn issues it to the six Departments and the local authorities for implementation." (Supplements to Wen Shien Tung Kao, Bk. 52, Section on "Jurisdiction") This system resembles somewhat the modern separation of powers. As a matter of fact, the separation of powers is as much applicable to a monarchy as it is to a democracy. In a democracy it serves to prevent any branch of government from becoming too powerful and to safeguard the liberty of the people. In a monarchy it serves to prevent any minister of state from becoming too powerful and encroaching upon the prerogatives of the Throne. When the draft mandate or decree was being sent by Chung Shu sheng to Meng Hsia Sheng for consideration, Chien Ni Da Fu who had expostulatory duties could take advantage of the opportunity to offer comments and suggestions. Emperor Tai Tsung (627-649 A. D.) of the Tang Dynasty had decreed that whenever the Prime Minister went to the Court to deliberate on any important affairs of state, he must bring Chien Ni Da Fu with him to take part in the discussions. It has become an established custom since then for Chien Ni Da Fu to participate in discussions on matters of state. "According to the system adopted in the Tang Dynasty, whenever a minister of Chung Shu Sheng or Meng Hsia Sheng, or any high official from the third rank up, went to the council chamber, he must bring with him a Chien Ni Da Fu to participate in the discussion of state affairs in the hope that he might have something to say." (Supplements to Wen Shien Tung Kao, Bk. 52) It was the duty of Chien Ni Da Fu to criticize governmental policies and to serve as a check on the ministers of state. Persons elevate to this post were mostly selected through popular recommendation and state examination, and those who were thus selected must be men of knowledge and virtue. Only men of knowledge are able to judge of the merits and demerits of policies; only men of virtue are able to rise above partisan considerations. But as the function of policy-making and that of criticizing policies were vested in different hands; the policy-makers were likely to be more or less conservative for fear of being criticized, and the critics of policy or Chien Ni Da Fu were likely to be more inclined towards fault­ finding rather than less. As Mr. Hu Chih­ tang has well said: "Those who held this office of Chien Ni Da Fu were often more interested in expressing new-fangled ideas than doing their duty. Consequently, they became quite a nuisance to the smooth transaction of governmental business. Their suggestions could not possibly be all taken by the Throne. The actual number of Chien Ni Da Fu was therefore gradually decreased. But owing to the infeasibility of abolishing the office altogether, only one or two Chien Ni Da Fu were appointed for purposes of window-dressing." (Wen Skien Tung Kao, Bk. 50) It should be noted that whatever Ckien Ni Da Fu expressed was only their personal opinion. Unlike the modern democratic practice which recognizes the principle of majority rule as the basis for making decisions, there was in the ancient system no objective criterion to determine which opinion should be adopted and which rejected. The institution of Chien Ni Da Fu was therefore not a very effective system, though these expostulatory officials had the right to criticize governmental policies. More important than Chien Ni Da Fu was the institution of Yu Shih who dealt with questions of law. The duties of Yu Shih in this connection were two: on the one hand, it was his duty to examine the legality of all administrative acts, to see if there was anything illegal or "unconstitutional." During the Han Dynasty, all Imperil edicts bearing on points of law had to be screened by the office of Yu Shih Da Fu before it was officially issued by the Prime Minister to all personnel concerned. "The Memorial to the Throne requesting Imperial permission to confer a dukedom on Hung Tan (閎旦) and others was signed by the Prime Minister Chuang Tsing-ti (莊青翟) and countersigned by Yu Shih Da Fu Chang Tang (張湯). After the request had been granted by the Emperor the mandate was transmitted by Yu Shih Da Fu Chang Tang to the Prime Minister, who in turn issued it to all ministers and governors." (For the history of Hung Tan, see SsuMa Chien's Memoires Historiques, Bk. 60) On the other hand, all memorials by lower officials must be also submitted to the Throne through the Prime Minister and Yu Shih. This procedure was laid down in an edict of 117 A.D. "In the 6th month, 6th year of Yuan Shou (元狩六年) (117 A. D.) an edict was issued saying that whenever a local government had any proposal or report to make to the Court, it was 40 be sent to the Prime Minister and Yu Shih before it was presented to the Throne." (Pan Ku's History of the Han Dynasty, Bk. 6) The first of the above two instances shows that the Prime Minister had to consult Yu Shih on matters concerning points of law, such as the creation of a new dukedom, and that when the Imperial sanction had been obtained the question had to be reviewed again by Yu Shih to ensure that it was legally permissible. "If it was found to be legally permissible, the edict was then forwarded by Yu Shih Da Fu to the Prime Minister to be put into effect. According to the second of the two examples above given, it is clear that Yu Shih had a say in all matters which the Prime Minister was competent to handle, except that Yu Shih was primarily concerned with the legality of whatever measures were adopted to implement a given policy, while the Prime Minister was interested in its merits and demerits. This system had remained unchanged down to the Wei (220-264 A. D.) and Tsin (265-419 A. D.) Dynasties, after which it began to fall into desuetude and the duty of Yu Shih was confined only to impeachment. The power of impeachment, which is the most important function of the Control Yuan of today, was also the main function of the ancient Yu Shih. Yu Shih could impeach all officials of the central and local governments, including the Prime Minister himself, if they should be guilty of dereliction of duty or of any illegalities. The following points are noteworthy: (1) There were two distinctive groups of Yu Shih, one to watch over officials of the central government and the other over officials of the local governments. The latter group made circuit visits to the different parts of the country at regular intervals and would not remain at anyone place for too long. For if a Yu Shih had remained at anyone place for too long, he was likely to abuse his authority either by becoming intimate with the local officials or by assuming excessive powers. By the very nature of his duty, he was not sup­posed to interfere with local administration. If he had remained too long at any one place and kept a close surveillance over all local administration, even the best officials would have preferred to be inactive in order not to err on the wrong side. It was to prevent the abuse of power that the Imperial Government of the Han and Tang Dynasties had drawn up a set of six rules for the observance of Yu Shih in the exercise of his duties in the local districts. (2) Each Yu Shih carried out his duty individually and separately. Although there was a chief Yu Shih called Yu Shih Da Fu or Yu Shih Chung Chen (御史中拯), he had no right of supervision over the other Yu Shih. As Mr. Hsiao Chih-chung of the Tang Dynasty has well described the situation: "Traditionally, there had never been any chief among the group of Yu Shih. Since they are advisers to the Throne, they are responsible to the Emperor on an equal footing. Each Yu Shih, therefore, exercises his function of impeachment separately, and there is no need for them to consult each other." (Tang Hui Yao (唐會要), Bk. 61, on "Impeachment") Such an arrangement was meant to keep the position of Yu Shih entirely independent, independent of each other and independent of the Yu Shih Da Fu. Beginning with the Tsin Dynasty, Yu Shih was also granted the right of "memorializing the Throne on the strength of unconfirmed reports." (Wen Shien Tung Kao, Bk. 54) This privilege was an example of the perfect freedom of speech enjoyed by Yu Shih in addition to his independent position so as to give him sufficient authority to impeach even the most exalted officials. During the Sung Dynasty (960-1279 A. D.), both Yu Shih and Chien Ni Da Fu were exempted from responsibility for opinions expressed in the normal exercise of their duties, and the Emperor had never frowned on them for the liberal exercise of their power. But soon these extraordinary privileges of Yu Shih led to un­fortunate results. Both Yu Shih and Chien Ni Da Fu abused their powers by making wanton attacks on ministers of state and on government policies, and the Court was forced to make frequent changes in the personnel of high officials and in major policies. Consequently, there was no stability in administration, because the censorial power had weakened the executive branch of government. This deplorable situation caused the scholar-poet, Ssu Shih, to observe that "the Prime Minister is a mere figure-head doing the biddings of Yu Shih and Chien Ni Da Fu." Political instability and the lack of consistent policies were, indeed, the chief reasons which caused the gradual weakening of the Sung Dynasty. (3) While the power of impeachment was exercised by Yu Shih, the trial of officials under impeachment was conducted by the judiciary, which might be either the Ting Wei (廷尉), the Criminal Judge, or Da Li (大理), the Supreme Court of Justice. In the Han Dynasty, a special court consisting of five high officials specially appointed by the Throne was sometimes instituted for the trial of important cases. For instance, when Prime Minister Hsueh Hsuan (薛宣) and Yu Shih Da Fu Ti Fang­ tsin (翟方進) were accused, Emperor Cheng (成帝) (32-7 B. C.) appointed five high-ranking officials to conduct the trial. When Prime Minister Wang Chia(王嘉) was accused, Emperor Ai (哀帝) (6-1 B. C.) likewise appointed five high officials to conduct the trial. (History of the Han Dynasty, "Life of Ti Fang-tsin" and "Life of Wang Chia ") These were special courts instituted for the trial of specific cases only. There were also special courts of trial in the Tang Dynasty as described in Bk. 53 of Wen Shien Tung Kao: "When there were extraordinarily important cases, the Throne would instruct the Board of Punishments, the Board of Yu Shih, and the Grand Court of Justice to conduct a joint trial. This was known as trial by the three boards." Under this kind of arrangement whereby Yu Shih had the power of impeachment but the trial was conducted by the judiciary or special courts, though each Yu Shih was independent of his colleagues and could impeach officials by independent action, he could not cow the executive officers into complete submission because the final decision as to the guiltiness or innocence of the persons impeached was not made by him but by the judiciary or special courts. Impeachment was a powerful weapon in the hands of Yu Shih to be used against high officials, especially the Prime Minister, to make them behave. But as the Prime Minister wielded the power of appointing all government officials and could recommend rewards and punishments, would Yu Shih be tempted to ingratiate himself with the high and mighty and allow­ his authority to fall into disuse? It was to fore­stall such a possibility that the ancient Emperors were very careful in the choice of right persons to serve as Yu Shih. Only those with the best records and noted for honesty and personal integrity and learned in law were appointed to that high office. Another point is worth noting. Though the chief Yu Shih, or Yu Shih Da Fu, had no right to interfere with the independent exercise of power by the individual Yu Shih, he had a general supervision over them in the performance of their duties and could report to the Throne as to whether any individual Yu Shih had carried out his duties properly and faithfully. In the official hierarchy, Yu Shih Da Fu was only one grade below the Prime Minister in rank and in emoluments but above all the other ministers of state. Whenever a vacancy occurred in the office of the Prime Minister, it was always the Yu Shih Da Fu who was appointed to fill it. This practice had been well established during the Han Dynasty as shown by the following passage: "Traditionally, able secretaries of local governments are selected to be ministers; an able minister is selected to be Yu Shih Da Fu and the incumbent Yu Shih Da Fu always fills the vacancy in the office of the Prime Minister." (History of the Han Dynasty. Bk. 83, "Life of Chu Po") As Yu Shih Da Fu was the natural successor to the Prime Minister, he was called the Deputy Prime Minister in the Han Dynasty. Being desirous of replacing the Prime Minister, he would always keep a watchful eye on the latter. "Since Yu Shih Da Fu is only next in position to the Prime Minister, he is naturally always wishing or even praying for the death of or privately making wanton attacks upon The latter with the sole purpose of facilitating his succession to the position as Prime Minister." (Wen Shien Tung Kao, Bk. 53. Section on "Yu Shih Da Fu") His position is somewhat similar to that of an opposition leader in a modern parliament, who assumes the office of the Prime Minister and forms a new cabinet upon the fall of the old one. Under the ancient monarchical form of government, the power to make final decisions in respect of both governmental policy and question of law rested with the Emperor. But not all Emperors were wise and good, and yet they had practically absolute powers. Therefore, whenever a tyrant was on the throne, neither Yu Shih nor Chien Ni Da Fu was in a position to carry out their functions properly. Furthermore, the two offices had undergone some modifications since the Sung Dynasty. While it had been the office of Chien Ni Da Fu to criticize governmental policies and that of Yu Shih to investigate official corruption and maintain law and discipline in the government, this distinction between the two offices was gradually blurred when Yu Shih began to meddle in questions of policy on the pretext that they involved points of law, and when Chien Ni Da Fu began to dabble in questions of law in their criticism of governmental policies. The censorial institution lost all its usefulness when the voice of the censor was not listened to by the Throne on the one hand and failed to arouse popular enthusiasm on the other. The Chinese Government under the present Constitution continues to uphold the principle of independence for the offices of Yu Shih and Chien Ni Da Fu. But it is well aware of the undesirable effects produced by the confusion in the duties and powers of Yu Shih and Chien Ni Da Fu. That is why in addition to an elected President to take the place of an hereditary monarch, the Constitution provides for the separation of the censorial power and vests it in two separate organs. The power of supervision over questions of policy is now vested in the popularly elected Legislative Yuan, which has the power to decide upon any statutory or budgetary bill or any bill concerning martial law, general amnesty, declaration of war, conclusion of peace, treaties, and other important affairs of state. If the Executive Yuan differs in opinion with the Legislative Yuan on important matters of policy, it has either to resign or to accept the views of the Legislators. The power of supervision over questions of law, on the other hand, is now vested in the Control Yuan , whose members are indirectly elected by the people, which may institute an indictment or an impeachment of an official in the central or local government who is derelict in the performance of his duties or who is deemed to have violated any law. Upon impeachment, the President and the Vice President are to be tried by the National Assembly and all other officials by the commission for the Punishment of Public Officials. If the case involves a criminal offense, it is turned over to the court of law. The Chinese Constitution provides for a Control Yuan side by side with the Legislative Yuan. This is at once in conformity with the modern democratic spirit and in the best tradition of the censorial power as it has developed in the long course of Chinese history.