Did King Pu-tsung Really Violate the Constitution and Abuse his Authority?

Did King Pu-tsung Really Violate the Constitution and Abuse his Authority?
China Times editorial (Taipei, Taiwan, ROC)
A Translation
June 13, 2014

Summary: The National Security Council Secretary-General is the President's most important advisor on national security matters. He must help the president collect accurate national security information, thereby enabling the president to form accurate judgments and arrive at the proper decisions. This is not for the president alone. This is also in the interest of national security as a whole. King Pu-tsung attended national security briefings. The DPP has launched a political offensive against King in response. The truth is this is all about the election. The Office of the President need not bend over backwards to respond. The public should trust its own judgment. It is not obligated to dance to the DPP's tune.

Full Text Below:

National Security Council Secretary-General King Pu-tsung received briefings from the National Police Agency, the Bureau of Investigation, the Immigration Department and other agencies. The DPP and green media have blasted him for this, and accused him of unconstitutional abuse of power. King Pu-tsung is hardly the first National Security Council Secretary-General to inspect the National Police Agency and other government agencies. Before him, two National Security Council Secretary Generals, Hu Wei-chen and Yuan Chien-sheng, paid visits to these agencies, Hu Wei-cheng and Yuan Chien-sheng have remain unmolested. But King Pu-tsung, who merely followed their precedent, has been singled out for persecution. Why?

Of course there are political factors. One, King Pu-tsung is part of Ma Ying-jeou's braintrust. A blow against King Pu-tsung amounts to a blow against Ma Ying-jeou. Two, King Pu-tsung helped Ma Ying-jeou win four election campaigns. He defeated Chen Shui-bian, Lee Ying-yuan, Frank Hsieh, and Tsai Ing-wen. All four were key players. He was responsible for the DPP's loss of power. Of course the green camp has a grudge against King Pu-tsung.

Political motives are easy to understand. But what concerns us here is whether King Pu-tsung's  briefings from these security and intelligence agencies should be considered an unconstitutional abuse of authority?

This question can be viewed from two perspectives: practice and jurisprudence. First take practice. On November 10, 2005, National Security Council Secretary-General Chiou I-jen convened party and government leaders. He organized them into a campaign committee for DPP county chief and city mayor elections. He then presided over its first working session. On March 6, 2003 National Security Council Secretary-General Kang Ning-hsiang met with Minister of Foreign Affairs Eugene Chien, who briefed him on the progress of the Lafayette Frigate scandal investigation. That afternoon he visited the Ministry of Justice. On August 3, 2007, National Security Council Secretary-General Mark Chen investigated Kinmen's three mini links. He said national security considerations required him to assess whether the three mini links had any room for improvement.

The truth is clear to see. If King Pu-tsung was guilty of unconstitutional abuse of authority, then so were King's three DPP era predecessors. If anything, it is far more likely that they were guilty of unconstitutional abuse of authority.

In the first instance, National Security Council Secretary General Chiou I-jen presided over an election campaign. This was an astonishing abuse of authority. In the second and third instances, the issue was job responsibility. Kang Ning-hsiang visited the Ministry of Foreign Affairs and the Ministry of Justice. Mark Chen visited Kinmen and investigaged the three mini links. Not one of these concerned national security. Not one of these were the responsibility of security and intelligence agencies. King Pu-tsung's investigation, by contrast, had a definite bearing on national security. It had far more to do with security and intelligence matters than the former two instances.

Now take jurisprudence. Legally speaking, there are three reasons why King Pu-tsung cannot be accused of abusing his authority. One. According to constitutional amendments and the National Security Council Organization Law, the National Security Council is the president's advisory body for matters pertaining to national security and the president's major policies. Two. According to Article Two part one of the Organic Law of the National Security Bureau, the NSA is part of the National Security Council. It is in charge of national security intelligence and is specially charged with planning and implementation. Three. According to Article Two part two of the Organic Law of the National Security Bureau, the Intelligence Bureau, the Coast Guard, the National Police Agency, the Bureau of Investigation, and other intelligence agencies charged with national security, are responsible for providing integrated guidance, coordination, and support. Therefore the National Security Council Secretary-General, via the National Security Council under the National Security Bureau, has the authority to provide "integrated guidance" to the National Police Agency, the Bureau of Investigation and other agencies.

What is the legal reasoning of those who accuse King Pu-tsung of abusing his authority? One. According to the provisions of the Organic Law of the National Security Council, the National Security Council is chaired by the President, not the National Security Council Secretary-General. The right to inspect security intelligence agencies belongs to the president, not the National Security Council Secretary-General. Two. According to Article VI of the Organic Law of the National Security Council, the National Security Council Secretary-General takes its orders from the President. It resolves its own affairs accordingly. It commands and supervises its own staff. King's accusers define "council affairs" narrowly. They argue that the National Security Council Secretary-General can only inspect the National Security Council. He may not visit other agencies to receive briefings, even under presidential orders.

But if one adopts such a narrow interpretation, then King Pu-tsung is hardly the only National Security Council Secretary-General guilty of unconstitutional abuse of authority, Kang Ning-hsiang visited the Ministry of Foreign Affairs and the Ministry of Justice. Mark Chen had no right to visit Kinmen and investigate the three mini links. Such a narrow interpretation radically diminishes the role of the , National Security Council Secretary-General. It hinders the head of state from gathering information necessary to form accurate judgments about national security matters. The president has a surfeit of national policy concerns. Must he personally oversee all national security matters? Must he listen to every presentation? That is hardly consistent with the role of the National Security Council as the president's chief advisory body for national security matters.

A far more reasonable interpetation is that King Pu-tsung answers to the president by attending security and intelligence agency briefings, thereby helping the president collect information. The National Security Council is merely an advisory body. King Pu-tsung merely gathered information and briefed the President. The final decision and the issuing of any directives must still be done by the president himself.

Major decisions pertaining to national security require adequate information. Otherwise one is crossing the river blindfolded. The National Security Council Secretary-General is the President's most important advisor on national security matters. He must help the president collect accurate national security information, thereby enabling the president to form accurate judgments and arrive at the proper decisions. This is not for the president alone. This is also in the interest of national security as a whole. King Pu-tsung attended national security briefings. The DPP has launchd a political offensive against King in response. The truth is this is all about the election. The Office of the President need not bend over backwards to respond. The public should trust its own judgment. It is not obligated to dance to the DPP's tune.

社論－金溥聰違憲濫權嗎？
2014年06月13日 04:10
編輯部

國安會祕書長金溥聰前往警政署、調查局、移民署等機關聽取簡報，引起民進黨及綠媒連番砲轟，指責違憲濫權。金溥聰並非第一個視察警政署等單位的國安會祕書長，他的前二任國安會祕書長胡為真、袁健生在上任時都曾視察這些單位，胡為真、袁健生沒事，循例辦理的金溥聰卻有事，為什麼？

這中間當然有政治因素，一則，金溥聰深受馬英九信任，打金溥聰等於打馬英九；二則，金溥聰曾幫馬英九打贏4場選戰，連敗陳水扁、李應元、謝長廷、蔡英文4位民進黨要角，讓民進黨丟失執政，綠營當然對金溥聰懷有戒心。

政治上的動機不難理解，但我們關切的是金溥聰到這些治安情報單位聽取簡報算違憲濫權嗎？

這可從慣例與法理兩個層面分析。先看幾個實例行程的慣例。2005年11月10日國安會祕書長邱義仁召集府院黨高層，組成縣市長輔選機制，召開首次輔選工作會議。2003年3月6日國安會祕書長康寧祥拜會外交部長簡又新，瞭解拉法葉案調查進度，下午又去了法務部。2007年8月3日，國家安全會議祕書長陳唐山視導金門小三通業務，他表示，要在國家安全最高考量下，評估小三通是否還有改善空間。

不難發現，如果金溥聰的做法是違憲濫權，那麼民進黨執政時的3個例子，恐怕也有疑慮，甚至可非難性更高。

第一例中國安會祕書長邱義仁主持輔選會議，其濫權失格匪夷所思，第二例與第三例中，從業務關聯度言，康寧祥拜會外交部或法務部、陳唐山到金門視導，其對象均非一般認定與國家安全直接相關的治安情報機關。金溥聰視察的範圍至少還在與國家安全業務相關的治安情報機關範圍，業務關聯度要高於前二例。

再論法理。認為金溥聰沒有濫權者，法理邏輯有3層次，一、依憲法增修條文與國安會組織法規定，國安會為總統決定國家安全有關之大政方針之諮詢機關。二、依國安局組織法第二條前段：國安局隸屬於國安會，綜理國家安全情報工作及特種勤務之策劃與執行；三、依國安局組織法第二條後段，對情報局、海巡署、警政署、調查局等機關所主管之有關國家安全情報事項，負統合指導、協調、支援之責。因此，國安會祕書長透過國安會轄下的國安局，擁有「統合指導」警政署、調查局等機關的權力。

認為濫權者其法理邏輯，一、依國安會組織法規定，國安會主席是總統，不是國安會祕書長，有權視察治安情報單位的是總統，不是國安會祕書長；二、依國安會組織法第六條：國安會祕書長承總統之命，依據國家安全會議之決議處理會務，並指揮、監督所屬職員。論者將「會務」限縮解釋，國安會祕書長只能視察國安會，不能拜會其他單位聽取報告，就算有總統之命也不行。

若採如此限縮解釋，不只金溥聰違憲濫權，康寧祥也不可拜會外交部與法務部，陳唐山也無權視導金門小三通。這種最限縮的解釋，國安會祕書長功能將大幅縮小，連帶妨礙國家元首蒐集資訊以精準做出國安大政判斷的空間，這不啻是要國政繁雜的總統，在國安事務上連聽取通案簡報、蒐集通案資訊都必須事事躬親，恐怕未必合於國安會做為總統決定國家安全有關大政方針諮詢機關的設計初衷。

比較合理的解釋是，若金溥聰受有總統之命，就應有聽取治安情報機關簡報以協助總統蒐集資訊的權力，但國安會僅是諮詢機關，所以金溥聰只能單純的「聽取簡報」以協助總統蒐集資訊，最後做出決策、下達指令仍必須是總統。

國家安全大政的決策，有賴充分的資訊掌握，否則就如矇眼過河。國安會祕書長做為總統決定國安大政最重要的幕僚長，必須精確協助總統蒐集國安資訊，讓總統在耳聰目明下精準判斷、正確決策。這不是為了總統一人，而是為了國家整體的安全利益。民進黨此時對金溥聰聽取國安單位簡報發動政治攻勢，說穿了就是選舉前夕的鬥爭戲碼，總統府不必過度回應，國人也應該自有理性判斷，無須隨之起舞。