The Grand Justices solved a difficult problem by invoking the doctrine of rebus sic stantibus. Due respect is paid to the original intentions of the Constitution in setting up the National Assembly. If it is to be prevented from exercising the functions conferred by the Constitution, it will be something unanticipated by its framers. The line of reasoning used by the Grand Justices is compatible with well-established principles of legal interpretation and application. As a result, the National Assembly in its present Third Session can go ahead with its transaction of business, free from any doubt as to the presence of a quorum.
The principal business of the Assembly in its Third Session is primarily to elect the President and the Vice-President, as the terms of both of them expire this year. Article 47 of the Constitution allows reelection of the President for a second term only; but the wartime emergency calls for President Chiang to continue as President for a third term, as his services are indispensable to the anti-Communist struggle. A quorum is necessary either for amending Article 47 or enacting a temporary emergency provision to enable President Chiang to continue in office.
While it is necessary to keep the President in office for a third term, it is generally held that a temporary emergency provision is preferable to the amendment of Article 47 under present circumstances. Superficially, amendment of the Constitution and enactment of a temporary emergency provision produce the same results. But substantially, there is a difference in that a temporary emergency provision does not add or detract the Constitution and will end by itself when the national crisis is declared to be ended. Moreover President Chiang has expressed himself as opposed to amending the Constitution.
However, hardly had this question approached a solution before another difficult question arose. A sizeable number of the Delegates want to exercise the rights of initiative and referendum by either amending the Constitution or including these rights in the temporary emergency provision under contemplation, since the matter of a quorum is no longer a question. The appetite of some of the Delegates seems to have been whetted to such an extent that they want something more than what is absolutely needed at the present juncture. Granted that the experience of President Chiang both in political and military affairs is too invaluable to be denied to the nation, and thus becomes indispensable in the present national crisis, the rights of initiative and referendum to be exercised by the National Assembly at the present moment savor of luxuries.
Aside from the question of validity of initiative and referendum to be used in a large country like China, there is every reason against using them extensively concerning national legislation in Taiwan. From the standpoint of constitutional history, the system of initiative and referendum has been used only in small cities, townships, or other local governmental units. Switzerland is about the only country where direct democracy has been practised. It was the ambition of Dr. Sun Yat-sen, father of the Republic, that direct democracy might be practised in a country the size of China. Dr. Sun wrote that: "The political power above (suffrage, recall, initiative, referendum) is in the hands of the people, the administrative power (ability) below (legislature, judiciary, executive, civil service examination, censorship) is in the hand of the government. The people control the government through the suffrage, the recall, the initiative, and the referendum; the government works for the people through its legislative, judicial, executive, civil service examination, and censorship departments. With these nine powers in operation and preserving a balance, the problem of democracy will truly be solved and the government will have a definite Course to follow. The materials for this new plan have been discovered before now. Switzerland has already applied three of the political powers but does not have the recall. Some of the northwestern States in the United States have taken over the three political rights from Switzerland and have added the right of recall."
It must be emphasized here that Switzerland is a small country, while the north western States of the United States using the same system are no more than local government units. Even in the northwestern States, this direct democracy has rarely been practised, being the exception rather than the rule. It remains to be seen when the Federal Government of the United States will adopt this system of initiative and referendum as to national legislation. It can be safely said that direct democracy through the instrumentality of initiative and referendum has never been tried in a country as large as the United States or China.
When the Chinese Constitution was drawn up, Dr. Sun's idea of direct democracy was not completely adopted. What was achieved then concerning this aspect of political rights was as in usual in constitutions, a compromise. Just as the American Federal Constitution was a compromise between the Federalists and the party of states rights, so the Chinese Constitution was a compromise between the Kuomintang delegates and the delegates of other parties in 1946. It was to the satisfaction of none. It could not possibly be otherwise.
Concerning the right of initiative and referendum of the National Assembly, Article 27, Paragraph I, Item (3) of the Constitution provides "to amend the Constitution"; Item (4) provides "to vote on proposed constitutional amendments submitted by the Legislative Yuan by way of referendum." The second paragraph says, "with respect to the rights of initiative and referendum, except as is provided in Items (3) and (4) of the preceding paragraph, the National Assembly shall make regulations pertaining thereto and put them into effect, after the above-mentioned two political rights shall have been exercised in one half of the Hsien and Municipalities of the whole country."
The said provision in connection with the rights of initiative and referendum in national legislation, other than constitutional amendment, is a contingent one. Unless the contemplated contingency occurs as a condition precedent, there is no point in urging the speedy exercise by the National Assembly of the rights of initiative and referendum as to national legislation while in Taiwan. The rights of initiative and referendum have not even been exercised in the local government units here. What is the constitutional basis for the National Assembly to exercise such rights of initiative and referendum concerning national legislation now? It is rather difficult to find any worthy motive underlying the claim for such rights. The question does not arise as to when one half of the Hsien and Municipalities of the whole country shall have exercised the two political rights. It is almost unthinkable that any claim for the exercise of these two political rights by the National Assembly can be advanced at the present moment.
Dr. Sun's original idea was to distinguish between authority (sovereign power) and ability (administrative power) so that there could be a strong central government, without the accompanying evils of representative government as experienced in the West for the last three hundred years. Under his plan, the President is compared to the general manager of a company, while the people are the shareholders. The general manager is to be given extensive powers so as to transact business of the company swiftly and efficiently. But the shareholders hold the authority or sovereignty. The President is given five administrative powers for the purpose of forming a strong government, while the people wield the power of supervision by means of the exercise of the four sovereign powers through the National Assembly. The functions of the National Assembly under Article 27 of the Constitution are: (1) to elect the President and the Vice-President, (2) to recall the President or the Vice-President, in addition to what are enumerated above as the power of amending the Constitution, and the contingent power of initiative and referendum. The nature of the National Assembly is somewhat like that of the Presidential Electoral College and the Constitutional Convention in the United States, except that the National Assembly is a permanent organization, while the two American organizations are non-permanent.
The difference of permanency is significant, as far as Dr. Sun's plan of direct democracy is concerned. Dr. Sun was of the opinion that Western representative government is not responsible, or responsive, to the electorate after the representatives get elected. The people have to wait for the next election when they can hold their representatives accountable by refusing to vote for them again. But they are helpless during the interval. Thus the idea of permanent organization such as the National Assembly constantly functioning is as a club over the government.
The delegates to the National Assembly are supposed to be laymen as contrasted with the experts of the legislature that represent "ability." The delegates will live among their respective constituencies so that they are responsive to the opinions of the people, in view of the fact that there is no permanent organization established at the seat of the Central Government. They can attend to their respective professions as usual including the posts of government officials. It follows, therefore, that they cannot expect any substantial remuneration from the government payroll except travelling expenses in time of convocation. However, this does not mean that the powers of the delegates are in any way meagre. On the contrary, the power of election and of recall of the President and the Vice-President and the power of amendments of the Constitution are tremendous, not withstanding the power of initiative and referendum being contingent according to the present form of the Constitution. The powers the delegates wield are sovereign powers according to Dr. Sun's definition.
Why do the Delegates want to exercise the rights of initiative and referendum right now? It is suggested, rightly or wrongly, that the position of the delegates during these years of constitutional experiment in Taiwan has been somewhat overshadowed by that of the legislators, which is more ostentatious. The legislators have had occasion to meet constantly to deliberate on national affairs and are always in the public limelight, whereas the delegates remain all the time somewhat obscure with the exception of the convocation every four years of the Assembly when they are treated with due respect. They want, therefore, to share the national legislative powers of the legislators through initiative and referendum.
If this is the motive, the matter is serious. Although Dr. Sun's original idea of the National Assembly is to have it function as a check on the administrative powers of the Government, it is far from weakening the power of the Legislative Yuan. On the contrary, what Dr. Sun had in mind is an all-powerful government. Concentration ensures power; division produces weakness. It can be easily imagined that only confusion and procrastination will result, if the National Assembly with its huge membership is to sit constantly to either initiate or veto national legislation. If this division of legislative powers between the Legislative Yuan and the National Assembly is carried too far, the question may arise among outsiders: which is, after all, the legislative organ of the National Government, the Legislative Yuan or the National Assembly?
It is further suggested that the National Assembly may act as an intermediary incase of conflict of legislative policy between the Legislative Yuan and the Executive Yuan. As shown by the past ten years of constitutional experience on Taiwan, the occasion for such conflicts has been rare. Even if such t conflict should happen as it did once only in the last ten years, the President would be better able to handle it. There is hardly any need for the National Assembly to intervene in such conflicts.
Constitutional practice is a science as well as an art. The success of it depends, in a large measure, upon the genius or the temperament of a people. It is not the constitutional form but the spirit of the people concerned that is of prime importance. Dr. Sun's idea of having the National Assembly as a permanent organization to serve as a check on representative government is a new constitutional device for a large country like China and is, to that extent, very laudable.
The idea is actually written into the Constitution, even though the incorporation is incomplete as compared with the original idea. The result is only a compromise. Nobody is completely satisfied with it. But no harm is done, because there is hardly any constitutional instrument in the history of constitutions that is perfectly satisfactory to all the parties concerned. The American Federal Constitution is one of the constitutions noted for its imperfections, as it was originally written. But Constitutions grow like an organism through the process of adaptation and modification. In our case, due care is to be exercised to ensure that the Constitution will be permitted to grow like a living organism through the gradual process of adaptation, avoiding untimely, violent changes, so that Dr. Sun's idea of Five-Power Constitution will forever be a living reality among the democratic countries of the world.