Reviewing an independent executive agency in the light of the constitution－focus on the necessity of setting up, authority and organization
Date Issued
2007
Date
2007
Author(s)
Kuo, Jen-Sheng
DOI
zh-TW
Abstract
An independent executive agency set up according to law is a brand new attempt in Taiwan’s constitutional framework. It is relatively independent from the Executive Yuan. Taking the current constitutional, political deadlock between executive and legislative powers and the innate incompatibility between independent executive agencies and principles of separation of powers, politics of accountability and administrative unity into consideration, the establishment of independent executive agencies would be likely to bring up more constitutional difficulties and political turmoil. Based on these understanding, this thesis holds not only a strict, but also cautious manner toward the establishment of independent executive agencies.
After carefully examining the purpose of forming an independent executive agency, this thesis categorizes independent executive agencies by “the necessity of establishment”. The “absolutely inadequate” category contains those dealing with matters involving the core areas of administrative unity under the Executive Yuan (including the fundamental administrative business of the Executive Yuan, and policy-integrating agency) and President’s power on national security policy. Any independent executive agency set up to deal with these matters is unconstitutional. On the other hand, the other “admittable” category can be further divided into “the standard” and “the non-standard” independent executive agencies according to the appropriateness of establishment. The standard independent executive agency, also the most fit one as an independent executive agency, shall meet the following requirements: （i） the regulation of human rights concerns the political participation of citizens; or（ii） the demand for political neutrality is much more stronger than other executive agencies; or （iii） the administrative business has less need of policy integration and cross-departments negotiation. The difference between the standard and the non-standard independent executive agencies lies in the level of independence of “authority” and “organization”.
To which level of independence of authority can an independence executive agency be is discussed through the following four parts. This thesis suggests that the core element of authority independence is the exclusion of the ad hoc instruction beforehand from the Executive Yuan . This kind of independence shall be possessed by both the standard and non-standard independent executive agencies on the subject of authority. The limitation of authority independence is the authority to propose a statute or a budgetary bill and the status to petition for an interpretation from the constitutional court, that is, no independent executive agencies may possess independence in this authority field. As to whether an independence executive can enjoy the power of the exclusion of ad hoc review in legality and propriety of the Executive Yuan, and the power of making general policy or drawing up statutes varies between different categories of independent executive agencies.
The key issue on the part of the independence of the organization is the personnel appointment and removal power of an independent executive agency. The core areas of the executive power is more confirmed by the opposition between the executive power and the legislative power in the current Constitution and the J.Y.Interpretation No. 613. If the legislative power interferes with the personnel nomination of an independent executive agency, it will not only encroach on the core areas of the executive power but violate the principle of separation of powers, and will destroy the principle of politics of accountability and administrative unity and thus violate Article 56 of the Constitution. Hence, unless through the amendment of the Constitution or except the standard independent executive agencies, the Legislative Yuan can not by the operation of law possess the personnel consent power according to the interpretation of the Constitution. Since the core areas of the executive power may be encroached on because of no regulation regarding personnel removal currently, in order to ensure the independence of an independence executive agency, conferring the premier a restricted personnel removal power stipulated by law will be an acceptable scheme. Finally, the suspension rule in Article 4-II of the Public Functionaries Discipline Act is also reviewed in this thesis.
Subjects
獨立行政機關
獨立機關
設置必要性
不信任
權力分立
責任政治
行政一體
職權獨立性
訴願監督
政策統合
任期交錯
合議制機關
人事提名權
人事同意權
行政權核心領域
政黨比例
免職權
停職
an independent executive agency
an independent agency
necessity of establishment
distrust
the principle of separation of powers
the principle of politics of accountability
the principle of administrative unity
authority independence
the supervision of appeal of the administrative decision
policy-integrating
overlapping terms
collegial agencies
personnel nomination power
personnel consent power
the core areas of the executive power
Party Proportional Representation
removal
suspension
SDGs
Type
thesis
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