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Without a Constitutional Organ, There Will Be No Constitutional Power


 Parting Commentary


By Amb. Stephen S.F. Chen


Without a Constitutional Organ, There Will Be No Constitutional Power


Generally speaking, there are two types of democratic governments, i.e., the parliamentary system (cabinet system) and the presidential system, the former represented by the UK and the latter by the US.



In the presidential system of government, under the US Constitution, the executive power is vested in the President of the United States, the legislative power in the Congress, and the judiciary in the Supreme Court. In the Republic of China, the Constitution specifically vests executive power in then Executive Yuan, the legislative power in the Legislative Yuan, the judicial power in the Judicial Yuan, the control power in the Control Yuan, and finally, the examination power in the Examination Yuan. These powers are called constitutional powers because they emanate from the Constitution itself, and the 5 Yuan are called constitutional organs, and they also emanate from the Constitution itself. These powers and organs may not be removed or altered without amending the Constitution. If an organ were removed, the power vested in it would no longer be a constitutional power.


The 2nd tier of government institutions under the 5 Yuan are government agencies, repeat government agencies, not constitutional organs because government agencies emanate from legislation, not the Constitution itself. However potent they may be, they don’t have constitutional power, but rather jurisdiction vested by law, not by the Constitution itself.


Thus, a so-called independent government agency, such as the Central Election Commission or the NCC, under the Executive Yuan would not have the same status as a constitutional organ, hence without constitutional power, but simply jurisdiction created by law.


Unfortunately, power (權力 chuanli) is abbreviated as “chuan”, and jurisdiction (權限chuanxian) is also abbreviated as “chuan”, so many people have the wrong impression that there is no difference between power and jurisdiction, but God knows the difference is enormous because power emanates from the Constitution itself, while jurisdiction from legislation. It is absurd to say a state could create an independent government agency under the executive branch by law and say that this independent government agency wields constitutional power.


The conclusion is: without a constitutional organ, there would be no corresponding constitutional power. No political scientist would say that we could abolish a constitutional organ, yet maintain the corresponding constitutional power vested in an independent government agency.


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