Punish Ting Hsin, but Uphold the Rule of Law

Punish Ting Hsin, but Uphold the Rule of Law
China Times editorial (Taipei, Taiwan, ROC)
A Translation
December 11, 2014

Executive Summary: The Ting Hsin Group was unscrupulous. The public has a right to punish it. But public opinion is one thing. That does not mean the government can engage in gross exaggeration, pander to populist sentiment, ignore the law, and use the opportunity to expand its power and abuse the innocent. The Taipei 101 Building ownership issue is a relatively minor matter. The government becoming impatient and acting rashly in order to punish Ting Hsing is a far more serious matter. If this undermines Taiwan’s reputation for rule of law in the eyes of domestic and foreign investors, the cost will truly overshadow any perceived benefits.

Full Text Below:

The Ting Hsin Group (Wei Chuan) revealed that it plans to sell its 37% stake in the Taipei 101 Building to the Malaysian-based IOI Group. This raised alarm bells for three government head, including Finance Minister Chang Sheng-ho, FSC Chairman Tseng Ming-chung, and Central Bank president Perng Huai-nan. Together they stepped forward to oppose it. Taipei 101 is a Taiwan landmark, they declared. Its shares must not be sold to foreign investors.

The Ting Hsin Group rancid oil scandal provoked national outrage. Enormous social pressures led to operating difficulties. The subsequent financial pressures forced the Ting Hsin Group to sell off its 101 shares. The building commands a high price because real estate prices have skyrocketed in recent years. The sale of its shares is sure to be profitable. Such is the nature of the market economy. But the Ting Hsin Group profiting from the sale has made the public angry. The result has been political pressure on the new cabinet. That the three officials would make such a statement is understandable.

The Ting Hsin Group has provoked public anger. But is the government acting in accordance with the law? That is another matter altogether. If 101 shares are traded on the market, there will be buyers and sellers. Any trade will reflect market prices. The Republic of China, after all, is a nation ruled by law, which respects the fundamental laws of the marketplace. If the government wants the Ting Hsin Group to bear legal or social responsibility, it can prosecute its executives. But it cannot arbitrarily intervene in the transaction merely because it wants to punish the Ting Hsin Group or is angry at the buyer. The government cannot force the Ting Hsin Group to sell off its 101 shares, and also dictate who may purchase them. Otherwise what will it be, other than a dictatorship?

IOI has yet to submit an application to the government as a foreign investor. Yet government officials have already declared that foreign investments are unwelcome and will not be approved. They were clearly pandering to populist sentiment. The Ting Hsin Group’s rancid oil scandal provoked public wrath. But the government was actually the first party to act irresponsibly. It failed to detect the problem before the fact. It provided no solution to the problem after the fact. Its prosecution of the case was inept. It was impotent in the face of public anger. It has no right to posture as public savior, when in fact it was one of the guilty parties. It has no right to use the opportunity to become the de facto owner of the Taipei 101 Building. It has no right to use the opportunity to increase government control of the Taipei 101 Building. Foreign investors have yet to submit applications. Yet the government has already intervened and declared that it will not allow any such investments? What was their legal basis for not allowing such investments? If the government acts without any legal basis, is not merely rash. That is an abuse of public authority in the market place.

Peng Huai-nan, the president of the Central Bank has long been respected by the public. Yet he meddled in the case. He declared that Taipei 101 is a Taiwan landmark,  therefore “it is best owned by our own citizens." This arrogant display of central bank exchange control authority was shocking. President Peng said that in the event no laws applied, other means to prevent foreign ownership should be sought. He clearly realized that he lacked any legal grounds, or at least was not aware of any legal grounds. Yet he was determined to act regardless. His behavior calls for public condemnation.

Finance Minister Chang Sheng-ho knew the ministry had no authority to decide who sold what shares to whom. Yet he argued that since IOI "intended" to contact other shareholders to obtain the right to operate the building, it was not purely a financial investment, and expressed his personal opposition to the Investment Commission. He clearly lacked any understanding of the rule of law. Government-owned shares may compete with the IOI franchise in the market place in many ways. But if the government abuses its public authority to prevent IOI shares from participating, then a player has become the referee.

The newly installed Minister of Economic Affairs argued that foreigners must invest in accordance with the provisions of the law. The law prohibits foreign investments that “have adverse affects on national security, public order, good morals, or national health." His comment was particularly unbelievable. How can the Taipei 101 Building possibly “have adverse affects on national security, public order, good morals, or national health?" How can foreign ownership of a Taiwan Landmark be contrary to public order? What manner of legal interpretation is this? The Ministry of Economic Affairs is responsible for auditing foreign investments in this country. If it adopts this kind of closed door, nationalist attitude toward law enforcement, how many foreigners will be willing to invest in Taiwan? How many foreigners will be willing to humiliated by a government that show so little respect for the rule of law?

The government has long adopted this attitude toward enterprises involving public shares and government participation. How many local Taiwan companies will be willing to cooperate with the government in the future? The ruling administration endlessly trumpets its ambition to boost the economy, to internationalize, and to liberalize. Yet three officials responsible for foreign investments have demonstrated their utter disregard for the law, engaged in hyperbole, and acted upon whim. How can such a ruling administration attract foreign investments to Taiwan? How can we still talk about international competitiveness?

The Ting Hsin Group was unscrupulous. The public has a right to punish it. But public opinion is one thing. That does not mean the government can engage in gross exaggeration, pander to populist sentiment, ignore the law, and use the opportunity to expand its power and abuse the innocent. The Taipei 101 Building ownership issue is a relatively minor matter. The government becoming impatient and acting rashly in order to punish Ting Hsing is a far more serious matter. If this undermines Taiwan’s reputation for rule of law in the eyes of domestic and foreign investors, the cost will truly overshadow any perceived benefits.

社論－頂新可誅 法治不可壞
2014年12月11日 04:10
本報訊

頂新集團計畫將台北101大樓逾37%持股售與馬來西亞IOI集團，驚動了政府3位首長，包括財政部長張盛和，金管會主委曾銘宗，還有央行總裁彭淮南，一齊站出來表示反對。理由是台北101大樓是台灣的地標，其股權不宜賣給外資。

頂新集團黑心食油案引起全民公憤，鉅大的社會壓力，造成集團整體營運困難，財務壓力下決定出售101大樓股權。這棟大樓產權價值甚高，近年房地產價格飆漲，出售股權必然獲利，這本是市場經濟的法則，但頂新集團獲利出場，社會大眾憤憤不平，因而對新內閣造成政治壓力，財經三長集體喊話是可以理解的。

然而，頂新集團引起社會公憤是一回事，政府如何依法行事，則是另一回事；101大樓的股權在市場上進行交易，有賣方就有買方，有交易就有市場價格。台灣畢竟是一個應該尊重基本市場經濟秩序的法治國家，政府要求頂新集團負起法律或是社會責任，可以依法追訴頂新，但是不能只是因欲制裁頂新，而擁有遷怒買方，恣意干預交易主體或是交易價格的權力。政府又想強迫頂新出脫101股權，又想決定誰才可以成為買主，豈不成了專制政治？

在IOI還未以外資的身分向政府有關部門提出外人投資申請之前，政府財金首長就列隊表示並不歡迎外資，聲言不會同意，擺明的是討好民粹的舉動。然而在頂新黑心油事件招致民怨四起的過程之中，政府失察在先，又是應對無方，取締乏力，面對社會指責而難辭其咎，也就缺乏扮演救世主的道德立場，利用對付頂新集團的機會，球員兼裁判，實有欲順勢成為101大樓產業的實質控制者，趁機擴大政府在101大樓產權的版圖之嫌！在外資提出申請之前，就看到政府橫加干預而且表示不會允許，我們必須追問一句：不予允許的法律依據是什麼？政府行事缺乏法律上的依據，那就不只是孟浪，而是濫用公權力干預市場的舉措了！

一向受人尊敬的中央銀行彭總裁這次竟也參與其事，只因101是台灣的地標，就說股權「最好由國人取得較好」，這如果是在傲慢地展現中央銀行實施外匯管制的權力，不免令人訝異。彭總裁強調須問相關法令有無依據，如果沒有就要看看有無其他辦法阻止外資入股，他顯然了解此舉並無法律依據，至少是還不知道有什麼法律依據，竟然還要出面阻止，絕非值得贊許的舉動。

財政部長張盛和明明知財政部不能影響頂新出售持股給誰，卻還因為IOI「打算」洽詢其他股東取得經營權，不是單純的財務性投資，就要在投審會中表達反對立場，豈不是明白缺乏法治觀念？官股在市場上與IOI競爭經營權，可以採取的方法很多，卻竟然只想用手上的公權力不允IOI入股，不是球員兼裁判是什麼？

甫上任的經濟部長則指出是要依據外人投資條例的規定，禁止外人投資「對國家安全、公共秩序、善良風俗或國民健康不利影響的事業」，尤難令人置信。101大樓竟然會是「對國家安全、公共秩序、善良風俗或國民健康不利影響的事業」？台灣的地標由外資持股就能算是違反公共秩序？這又算是哪門子的法律解釋？負責審核外人投資的經濟部用這種鎖國式的民族主義態度執法，還有多少外人投資願意進入台灣來接受如此不知法治為何物的政府羞辱？

政府對於有公股參與的事業，予取予奪的姿態一至於此，試問又有幾家本土企業以後敢與政府合作經營事業？執政團隊口口聲聲要為台灣拚經濟，國際化、自由化的口號整日掛在嘴邊，三大財金首長對於外人投資卻是如此無視於法律的規定而誇誇其談，恣意行事，這樣的執政團隊憑什麼為台灣向全世界招商引資？還談什麼國際競爭？

頂新集團無良，國人皆曰可誅，固是社會輿情所同然；但是並不代表政府就可以無限上綱，一味迎合民粹，有法不依，藉機擴張並濫用主管機關的權力地位，殃及無辜。101大樓的股權歸屬其實事小，政府部門沉不住氣，為了對付頂新而行事操切，砸了台灣歡迎外人投資的法治國家招牌，使得國內與國外的投資人對於台灣望而卻步，那真將會是得不償失了！