United Daily News editorial
translated by Bevin Chu
July 2, 2007
National Communications Commission Website
The National Communications Commission (NCC) is authorized to approve the transfer of Broadcasting Corporation of China (BCC) shareholder rights. The Executive Yuan has accused the NCC of "obvious patronage, definite dereliction." It says it will prosecute the NCC within the week, and is considering "suspending" NCC committee members.
The Democratic Progressive Party (DPP) is prepared to play the KMT party assets card for all it is worth in the upcoming legislative and presidential elections. The NCC approved the transfer of BCC shareholder rights that were once the property of the KMT. This naturally, has reduced some of the pressure on the KMT. That the Executive Yuan would react so violently was to be expected. But the use of executive authority against the rights and interests of any governmental agency, private association, or individual, must adhere strictly to due process and the rule of law. If in order to achieve a political objective one exceeds one's delegated enforcement, investigative, and prosecutorial powers, then that is the abuse of authority. If in the end such excesses are ruled illegal, then it will be too late for regrets.
The Executive Yuan alleges that the four companies holding BCC shareholder proxies are "shell companies whose source of funding is unclear." It accuses these four companies of violating Article Nine of the Company Law. It says "The Executive Yuan has already gotten to the bottom of the flow of funds." The Executive Yuan's accusations are obviously mutually contradictory. The Executive Yuan spokesperson's logic is incomprehensible. The charge that the buyer is a "shell company" and the charge that "the source of funding is unclear" are totally different charges. The charge that a company is a "shell company" means that the company is fictitious, that it doesn't in fact have any funds. If that were the case, then it would constitute a violation of Article Nine of the Company Law forbidding "funds entering an account but immediately withdrawn following the completion of registration." The practice of opening such companies is quite common. Loan sharks open such accounts in order to loan money to borrowers. Prosecutors and police have been investigating and dealing with these for some time. The charge that "the source of funding is unclear" is just the opposite. It means that funds are in fact available. It is merely the origin of the funds that is unclear. If that is the case, then Article Nine of the Company Law is inapplicable. Whether the origin of the funding violates any laws however, can be determined only after an investigation. Besides, as the NCC pointed out, intelligence and security agencies have already checked the source of the funding and verified that no mainland capital or foreign capital was involved, therefore no violations of the law were involved. So what basis does the Executive Yuan have for its allegations that "shell companies" were involved and that "the source of funding was unclear?"
As for the Executive Yuan's threats that it will "prosecute according to the law," apart from the judicial police and prosecutorial agencies, no agency within the executive branch is authorized to "prosecute according to the law." When an agency within the executive branch learns of illegal conduct, it turns any evidence over to the relevant judicial police or prosecutorial agencies. Its legal status is that of "plaintiff." Such being the case, the most that the Executive Yuan can do is to say that it "believes the NCC is guilty of a crime," then report the alleged crime to the relevant agencies. What authority does the Executive Yuan spokesperson have to accuse the NCC of "obvious patronage, definite dereliction?" A while ago, during the DPP presidential primary, documents belonging to the public prosecutor's office were leaked to the press. The documents charged Frank Hsieh of "clear violations of the law." Afterwards the Prosecutor General's Office was publicly required to correct its language. Prosecutorial agencies were also require to do so. Are Executive Yuan spokespersons to be exempt from responsibility for their public statements?
If the Executive Yuan believes that the NCC is guilty of "obvious patronage, definite dereliction," it can report its suspicions to the relevant judicial police or prosecutorial agencies, and allow them to handle the matter. Yet the Executive Yuan had the presumption to declare that it would "suspend" NCC Committee Members. This has even less legal basis. First of all, the NCC is an independent authority. NCC committee members enjoy tenure. Is the Executive Yuan authorized to arbitrarily suspend committee members of such a special administrative unit? Not long ago, the Chairman of the Financial Supervisory Commission was involved in a scandal. The Executive Yuan wanted him to resign. The commission chairman enjoyed tenure and refused to obeys orders. The Executive Yuan could do nothing. Given such a precedent, how can the Executive demand the resignation of NCC Committee Members?
Furthermore, NCC Committee Members are specially appointed. They are among the highest ranking officials in the civil service. Specially appointed officials may stay or go, but they cannot be "suspended." This is common knowledge. As for other civil service officials, if one wishes to suspend them, they are each subject to different disciplinary regulations and punishment methods. If they are suspected of a crime, if a warrant is issued for their arrest, if they are taken into custody, if they are convicted of a crime, if they are formally deprived of their political rights, if they are thrown in prison to serve a sentence, then of course they will be suspended in accordance with the law. But if one believes that a high ranking civil service official has broken the law and neglected his duty, if one believes he must be suspended, then one must inform his superior, namely the Chairman of the NCC, and allow him to handle the matter according to official disciplinary committee procedures. The Executive Yuan has neither authority nor responsibility in this matter. Nor has it submitted any facts or evidence to the disciplinary committee. How can they suspend any committee members?
In short, if the Executive Yuan has any evidence of illegal conduct, it should report such conduct. At the same time, it may also submit any evidence to the disciplinary committee. Instead the Executive Yuan foamed at the mouth, treating issues concerning the rule of law as political footballs, and the legal system as a political battleground. All it succeeded in doing was to confess its own political motivations.
Original Chinese below:
NCC事件：行政院可以告發，無權定罪！
【聯合報╱社論】
2007.07.02 03:34 am
國家通訊傳播委員會（ＮＣＣ）有條件同意中廣股權移轉，行政院指為「明顯圖利、確定瀆職」，並稱將於一周內移送法辦，且考慮將ＮＣＣ委員停職云云。
黨產議題是民進黨準備在立委和總統選舉中傾全力主打的政治訴求之一。如今ＮＣＣ同意原為黨產的中廣移轉股權，自是解消了國民黨的部分壓力，行政院有此激烈反應原在意料之中。然而，動用行政權力處理任何機關團體或個人的權益問題，都必須嚴守依法行政的分際；倘為達政治目的而侵越了原應由司法偵審所為之事，那就是濫用權力，若最後被認定為違法，那更將噬臍莫及了。
行政院指買受中廣股權的四家公司是「空頭公司、資金來源不明」，又指該四家公司違反公司法第九條，且謂「行政院已查清資金流向」。這些指控顯然彼此矛盾，行政院發言的邏輯令人不解。買家是「空頭公司」或「資金來源不明」，其實是完全不同的。空頭公司意味公司只是虛設，沒有真正的資金；倘係如此，即有可能是公司法第九條所禁止的「資金進帳完成登記隨即撤走」的情形。坊間開設公司，這種情形極為常見，甚至有專門借錢給人作出帳面以開設公司的地下錢莊，檢警也一直在查辦。反之，「資金來源不明」則是確有資金到位，只是來源不明；若是這樣，就絕不可能扯上公司法第九條；至於資金來源究竟違反什麼法律，那就要看調查的結果以及有無法律規範了。何況，ＮＣＣ指出，曾就資金來源向情治單位查證有無陸資及外資，據告皆無違法，則行政院所指「空頭公司」與「資金來源不明」究何所本？
至於說要移送法辦，其實除了司法警察或檢察機關，沒有任何行政單位有權將人「移送法辦」。行政單位知悉不法情事，將證據資料移請權責司法警察或偵查機關偵辦，其法律上的地位應是「告發」；就算是審理機關即法院，在審案過程發現未經偵辦的不法情事，亦只得移請該管檢察署偵辦，其意義亦是告發。既然如此，行政院最多只能說「認為ＮＣＣ同意中廣案涉嫌犯罪」，然後告發；行政院發言人豈有權力逕自宣稱「明顯圖利、確定瀆職」？不久前，民進黨總統初選發生檢察官公文外洩，公文內容指謝長廷「犯行明確」，事後高檢署還要公開更正用語；檢察機關尚且如此，行政院發言人豈可信口開河？
進一步說，行政院若認為有圖利、瀆職等違法情事，其實逕可告發到司法警察或檢察機關偵辦，以待司法處置；但行政院另一方面竟宣稱要將ＮＣＣ委員「停職」云云，這更是於法無據。首先，ＮＣＣ是獨立行使職權的機關，ＮＣＣ委員為任期制，對這種特殊的行政單位，行政院有權任意將其委員停職嗎？過去金管會主委涉案，行政院要求其去職，該主委以其具有任期保障拒不從命，行政院亦毫無辦法。先例如此，誠不知行政院將如何停ＮＣＣ委員之職？
再者，ＮＣＣ委員的主任委員為特任，其餘則比照最高階文官；特任官只有去留問題，沒有停職問題，這是基本常識。至於其他文官委員，倘欲加以停職，依公務員懲戒法的規定，則有各種不同狀況。如因涉案被通緝羈押，或刑事判決確定受褫奪公權宣告，或入獄服刑，當然即可依法停職。但如認為高階文官違法失職情節重大，有必要先行停職，則須由受理懲戒案的公懲會通知該管長官辦理，即由ＮＣＣ主委辦理。行政院既非權責單位，又未舉出具體事實移送公懲會，如何將委員停職？
總之，行政院若真有ＮＣＣ違法的證據資料，告發偵辦即是；同時，亦可移送公懲會進行處理。行政院氣急敗壞口不擇言，公然將法制議題當作選舉議題來渲染，將法制議題當作政治鬥爭來炒作，只是洩漏其政治動機罷了！
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