Does President Lai Know This is a Scandal in a Democracy？
The Storm Media Column, September 5, 2024
Recently, the Central Committee of the ruling Democratic Progressive Party (DPP) posted on Facebook for the Taipei District Prosecutors Office to rebut public suspicion about abuse of prosecutorial power, but this action invited more speculation that the DPP is giving orders to the judiciary, and the DPP subsequently removed the post. On the other hand, President Lai Ching-te appointed Yao Li-ming, who served as chair of Lai’s presidential campaign, to be vice president and grand justice of the Judicial Yuan, which is an utter disregard of judicial independence. Will President Lai withdraw this appointment? This decision will not be as easy as removing a Facebook post.
During the 2024 presidential election, many people were happy to see that the president would not be a person trained in law. From year 2000 on, three consecutive presidents—Chen Shui-bian, Ma Ying-jeou, and Tsai Ing-wen are all law graduates of National Taiwan University. Under their administrations, politics was more adversary, and the atmosphere of governing the country by ideology became more and more intense. Many people may expect that President Lai, who is not a law graduate, would govern more pragmatically. Such a view may not be fair to people who are trained in law, but most people want to see whether President Lai would have different ways of thinking. However, it is disappointing to see President Lai’s energy policy directions since he took office. The Lai administration would rather expand the capacity of thermal power plants to hold on to the DPP’s ideology of a non-nuclear power homeland. President Lai’s baggage of governing by ideology is no less heavy than his predecessors’ and his practical approach is nowhere to be seen.
While it is disappointing to see President Lai’s energy policy is impractical and cannot meet Taiwan’s needs, it is more stunning to see President Lai’s ignorance of judicial independence. The infographic created by the DPP rebutting criticisms of the Taipei District Prosecutors Office is a clear case. From illegal search to sleep deprivation interrogation, these actions are related to people’s basic constitutional rights, and the Taipei District Prosecutors Office should be closely reviewed. However, once the ruling DPP began to defend the actions of the prosecutors on their behalf, is there any room or possibility for Taipei District Prosecutors Office to improve? When the party gives orders, judicial officials may be happy to obey the orders or be forced to obey them, and the suspicion surrounding party intervention in the judiciary forms. When the DPP removed the Facebook post, it indicated that it was ignorance rather than a willful action. Even so, the ignorance of judicial independence by the leader of the country and the ruling party is in such a situation that Taiwan’s democracy and the rule of law is on the brink of the precipice.
Nevertheless, what is more serious than the error made by the DPP’s Facebook editor and more difficult to correct is appointing Yao as vice president and grand justice of the Judicial Yuan. In any democracy, it is nearly impossible for the president to appoint one’s campaign officials to be justices. President Lai’s appointment shows his enormous ignorance and disregard for judicial independence.
It is fair to say that Taiwan’s legal circles are generally pro-DPP, so President Lai can appoint many people who are qualified in law to be grand justices. Instead, President Lai chose to name Yao, who has written only 36 articles (many are not related to law), and who does not have legal background; the only explanation is President Lai wants to reward Yao. Observing President Lai’s political appointments, many of them are return of favors. Although it is normal to reward people in elective democracies, yet the appointments should be done according to the capabilities of the appointees. For example, when President Lai appointed Pan Meng-an, his campaign manager, as secretary-general of the Office of the President, most thought the appointment was fine. After all, Pan served as members of the Legislative Yuan and county mayor and has rich administrative experiences. Cases where campaign managers were later appointed to be chief of staff to presidents can also be found in other countries. But when Chen Shih-kai, who was President Lai’s campaign spokesman, only served three terms as a city councilor and lacks professional background, was appointed to the important post of the Minister of Transportation and Communications, even DPP people think this kind of reward is like turning the important national matters into a child’s play.
Some personnel appointments may be inappropriate, but appointing one’s own campaign chair as grand justice is more outrageous. During the debate on legislative reform laws in the Constitutional Court, representatives of the Office of the President and the Executive Yuan stressed the importance of separation of powers, arguing the reform laws not only invaded the executive power but also required emergency orders to stop their implementation. President Lai should know that while executive power is separate from legislative power, judicial power is also separate from executive power. When the president appoints his campaign chair to the Judicial Yuan, how can he make sure the judicial power is independent from the executive power? Or the President sees the Judicial Yuan is the subordinate to the executive power or is its affiliate organ? In the Federalist Papers, American founding father Alexander Hamilton suggested that the Senate should reject Supreme Court justice nominees who are cronies of or subjugates to the president. What Hamilton cares was if the independence of the judiciary or of the Supreme Court was insufficient and leans towards the executive branch, then the system of separation of powers, which American democracy relies on, will vanish completely.
Appointing one’s campaign chair as grand justice is unprecedented in a democracy, but there were cases of appointing one’s confidants to important posts. When he appointed his White House Counsel Harriet Miers to the Supreme Court, then-U.S. President George W. Bush was severely criticized for rewarding an unqualified person; even conservatives inside the Republican Party could not support the appointment. Miers later withdrew from the appointment in order not to embarrass President Bush and avoid being rejected by the Senate.
Former U.S. President Donald Trump is certainly not the person who loves democracy or respects separation of powers, but his appointees to the Supreme Court, though being conservatives, were well qualified in legal field. Even Trump did not appoint his campaign officials as Supreme Court justices.
What is rarely seen in democratic countries can often be found in countries with backsliding of democracy. The first step towards authoritarian rule in Poland and Hungary was the controlling of the courts. After the Polish government appointed its own people to the constitutional court, the European Commission of the European Union criticized its actions and sanctioned Poland. Later, a new Polish government was formed after the change of ruling parties and the judicial independence was restored. In other words, if President Lai and the DPP do not exercise self-restraint, Taiwan is only few steps away from a new authoritarian government like Hungary.
Naturally, President Lai’s undisguised appointments of campaign officials may be a combative gesture. The DPP does not hold majority seats in the Legislative Yuan, and President Lai and leaders in the DPP caucus of the Legislative Yuan are unwilling to communicate with opposition parties. If the appointments are rejected, the rejections can serve as signals and show that the opposition parties act in malicious boycott.
Unfortunately, it is the DPP who will be harmed. First, if the ruling party and the opposition parties can reach a consensus in reviewing procedures and not act in perfunctory ways as before, the Taiwan People’s Party (TPP) may not veto the appointments completely and will decide according to the development of the reviewing process. But since the the DPP is in the batting mood and once the situation becomes a political showdown, the Judiciary Yuan appointees in addition to Yao may also be difficult to pass the confirmations. Second, President Lai’s character as a fighting cock is revealed in his determined appointments of campaign officials and further shows his misunderstanding of the roles of judiciary system and the grand justices. The more knowledgeable persons in the DPP may not identify with such appointments.
Faced with such appointments, legislators may only follow Alexander Hamilton’s suggestions to the United States Senate that it has the obligation to reject judicial appointments who are subjugate to the will of the president. By doing so can the legislators guarantee separation of powers under a democracy which President Lai always bears in mind.