Tuesday, July 3, 2007

The Executive Yuan: Judge, Jury, and Executioner

The Executive Yuan: Judge, Jury, and Executioner
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would constitute a violation of Article Nine of the Company Law forbidding "funds entering an account but immediately withdrawn following the completion of registration."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:

2007.07.02 03:34 am








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