NO.325  (釋字第 325 號 )

1993/7/23

Article 15 of the Amendment to the Constitution provides that from the second term thereafter the Members of the Control Yuan should be nominated by the President and confirmed by the National Assembly. Shall the Control Yuan continue to be characterized as a part of the congress? If not, shall its investigative power be transferred to the Legislative Yuan?

　　Interpretation No. 76 of the Judicial Yuan states that the Control Yuan together with other central representative authorities are deemed equivalent to the congress of a democratic country. Such interpretation is no longer applicable to the Control Yuan since, after the implementation of Article 15 of the Amendment to the Constitution, the Control Yuan is not considered a central representative authority; moreover, its position and power have been changed as a result thereof. However, the Five-Yuan system under the Constitution has not been changed. The Amendment does not make changes to the impeachment power, censure power, rectification power, etc., which originally fell within the powers of the Control Yuan, and the investigative power accorded by Articles 95 and 96 of the Constitution for the exercise of the said powers. As such, this power of investigation shall nevertheless be exercised by the Control Yuan exclusively. In order to exercise the many powers granted by the Constitution, in addition to proceeding in accordance with Article 57, Subparagraph 1, and Article 67, Paragraph 2, of the Constitution, the Legislative Yuan may, after resolution by the general meeting or a committee meeting of the Legislative Yuan, request the relevant authorities to provide reference materials for issues involved in the subject matter. Where necessary, the Legislative Yuan may request for review of the original documents after resolution by the general meeting or committee meeting of the Legislative Yuan, and the authority being so requested may not decline such request unless in accordance with the laws or for other justifiable reasons. However, where the independent exercise of powers by the government authorities is protected by the Constitution, for example, legal opinions enumerated by the judicial authorities when adjudicating cases, performance evaluation of examinees by the examination authorities, determination by the members of the Control Yuan on whether to impeach or rectify, and the dealings of investigation and adjudication in litigation cases prior to the final and binding judgments as well as the files and evidence thereof, the exercise of investigative power by the Control Yuan with respect thereto is subject to constraints from the outset. Based on the same reason, the request for document review by the Legislative Yuan is subject to the same constraint.

　　The Constitution of our country does not provide for the notion of "Congress". There was a quandary as to which government authority should represent the congress where contact with other countries is required to be made in the name of the congress, and the Judicial Yuan has made an Interpretation No. 76 pursuant to a request. The Interpretation provides that "the National Assembly, the Legislative Yuan, and the Control Yuan together are deemed equivalent to the congress in a democratic country." In addition, the basic reasoning for such interpretation is based on the fact that all of the above are comprised of the members or representatives directly/indirectly elected by the general public, and that, as far as their positions and the nature of their authorities under the Constitution are concerned, they shall be deemed as the equivalent of congress in democratic countries. Since the Constitution perceives that the members of the Control Yuan are indirectly elected by the people, the provisions regarding approval power with respect to the personnel of the Judicial Yuan and Examination Yuan, and legislative immunity accorded by virtue of having the identity as the central people's representatives are no longer applicable by reason of Article 15 of the Amendment to the Constitution. Based on the above amended provision in the Amendment, the second-term members of the Control Yuan are commissioned after the approval by the National Assembly following nomination by the President. As such it is not a central representative authority and its position and powers are also altered. Consequently, the above Interpretation shall no longer be applicable to the Control Yuan.

　　In addition to the National Assembly, the Constitution has established five yuans to be in charge of the executive, legislative, judicial, examination, and control powers, all of which are the highest authorities of the country, and their respective powers are mainly delineated by the Constitution. This is not entirely similar to the separation-of-powers system adopted in other countries. The question as to which entity is the equivalent of a "congress" in a democratic country is not necessarily intrinsically related to the delineating of powers amongst the five yuans. The amended provision in the Amendment has not made changes to the five-yuan system, nor has it enlarged the powers of the Legislative Yuan. Since no amendment is made to the censure and impeachment powers exercisable by the Control Yuan where it considers the central or local public servants negligent or in breach of law, the power of rectification which is confined to the Executive Yuan and its relevant divisions and the investigative power granted by Articles 95 and 96 of the Constitution for the exercise of the said power, such power should nevertheless be exercised exclusively by the Control Yuan. In order for the Legislative Yuan to maximize its functions, Article 57, Subparagraph 1, of the Constitution states that "The Executive Yuan has the duty to present to the Legislative Yuan a statement of its administrative policies and a report on its administration. The legislators have the right to interpellate the premier of the Executive Yuan and the ministers of the divisions thereof whilst the meeting is in session." Article 67, Paragraph 2, provides that "the various committees may invite government officials and interested parties to attend the meeting and to answer questions." As such the legislators can be questioned or can raise questions at the meetings and acquire an understanding of the relevant matters from the explanations or opinions proffered by the persons being so questioned or the attendees in response to the subject matter in question. Where something is still not clear, they can, through resolution by the general meeting or committee meeting of Legislative Yuan, request the relevant authorities to provide reference materials with respect to issues involved in the subject matter under discussion. Where necessary, the Legislative Yuan may request for review of the original documents so as to comply with the constitutional provisions with respect to the exercise of powers by the legislators in meetings. The authority being so requested may not decline such request unless in accordance with the laws or for other justifiable reasons. However, the independent exercise of powers by the government authorities is protected by the Constitution, for example, independent adjudication by a judge in accordance with the laws and free from any interference, and the independent exercise of powers by the members of the Examination Yuan and Control Yuan are all clearly prescribed in Articles 80 and 88 of the Constitution and Article 15, Paragraph 6, of the Amendment. The prosecutor's investigation and the judge's criminal trial are both important procedures for the proper exercise of the country's punishment powers, and the two are closely linked. Except for the constraint of "the consistency of prosecution," the independent exercise of powers with respect to others shall similarly be subject to protection. Interpretation No. 13 of the Judicial Yuan provides some reference that the protection afforded to the current prosecutor shall be the same as that of the judge except in matters concerning transfer. Since the powers of the abovementioned persons shall be exercised independently, independent judgment shall be arrived at whilst free from external interference. Hence, with respect to legal opinions enumerated by the judicial authorities when adjudicating cases, performance evaluation of examinees by the examination authorities, determination by the members of Control Yuan on whether to impeach or rectify, and the dealings of investigation and adjudication in litigation cases prior to the final and binding judgment as well as the files and evidence thereof, the exercise of investigative power by the Control Yuan is subject to constraints from the outset. Based on the same reason, the request for document review by the Legislative Yuan is subject to the same constraint.

Ttanslated by David T. Liou.