Collective Silence: An Accomplice in Party Assets Committee Constitutional Violations

Collective Silence: An Accomplice in Party Assets Committee Constitutional Violations
United Daily News Editorial (Taipei, Taiwan, ROC) 
A Translation 
November 30, 2016

Executive Summary: Hannah Eulan, a German political theorist, cited the trial of Adolf Eichmann, a Nazi war criminal, to show that when the majority of individuals in society refuse to think, collective madness will ultimately push the whole society to commit the ultimate crime. "In politics, obedience is tantamount to support." People must not assume this matter has nothing to do with them. Some people on Taiwan still regard the KMT as a “bandit regime” and seek to remove it. But next to the DPP, the KMT pales by comparison. When Taiwan's democratic values and constitutional foundations are eroded, public silence will be the chief culprit.

Full Text Below:

According to the Executive Yuan Ill-gotten Party Assets Settlement Committee, or CIPAS, the Central Investment Company and the Hsinyutai Company must be nationalized in accordance with the Act Governing the Handling of Ill-gotten Properties by Political Parties and Their Affiliate Organizations. CIPAS arrived at this decision last week, and alleged that the Central Investment Company and Hsinyutai Company were illicit creations of the KMT. Premier Lin immediately convened the relevant ministries to discuss the matter, and form a takeover team. The actions of CIPAS have provoked a series of public controversies. Its procedures have been illegal, even unconstitutional. Yet CIPAS chairman Wellington Koo refuses to relent. President Tsai and the DPP bear the greatest responsibility. But the public cannot assume that such matters do not concern them, and stand idly by doing nothing.

Since CIPAS began operations, it has assumed that it is above the law. It has acted in complete disregard of legal procedures and justice. In September it ordered the Bank of Taiwan and Bank Sinopac to freeze the KMT's accounts. The Taipei High Administrative Court ruled that order issued by CIPAS was illegal. It ruled that the KMT is legally allowed to withdraw funds. But CIPAS ignored the court's ruling, and continued its freeze on KMT accounts in the two banks. CIPAS considers itself above the courts, hence entitled to ignore the court's decisions.

Last week, CIPAS decided that the Central Investments Company and Hsinyutai Company must be nationalized. This too, was contrary to the spirit of the Constitution. According to Wellington Koo, the two companies are the products of past party-state equivalence, when the government and state owned entities were interconnected, and a single party could use its dominant position to acquire illicit assets. Nationalization, Koo argues, is therefore the fulfillment of transitional justice. But the KMT acquired these assets before the Republic of China Constitution was amended on December 25, 1947. Therefore these assets are not covered by current constitutional provisions. They must be dealt with in accordance with the General Outline of the Constitution for the Political Tutelage Period of the Republic of China. The General Outline stipulated that the party and the government are one. The Party Assets Act was not in effect at the time. Any ruling must therefore abide by the General Outline, according to which “the party leads the government”. Besides, the KMT brought the gold and the government assets to Taiwan from the Mainland.

According to CIPAS, the Central Investment Company sold 200 million NT in bonds in 1971. Before that, KMT party owned businesses showed only a small two year surplus. CIPAS claims that the Central Investment Company, founded in 1971, is a KMT
affiliate organization. But the Company Law and Public Organizations Law then in effect did not expressly prohibit political parties from investing. The Public Organizations Law allowed the formation of organizations outside the party only after 1971. CIPAS claims that the China Investment Company was created by the sale of 200 million in bonds. Nevertheless it cannot ignore the shareholders' investments, the board of supervisors' oversight, and other capital injections. Not to mention the fact that its subsidiaries are independent legal entities and independent shareholder groups. The Constitution protects their property rights as well.

Finally, Executive Yuan and CIPAS spokesmen have repeatedly argued that according to the Administrative Procedure Law, Section 116, the China Investment Company and Hsinyutai Company shares must be nationalized. They will not stop because the KMT files suit. The KMT may call for a constitutional amendment, but it will not influence the CIPAS one iota. The DPP thumbs its nose at the justice system, and issues threats against the justice system, even as it holds high the banner of transitional justice. It abuses its executive power to defy the judicial process. Even if future courts render adverse judgments, such judgments can be challenged as improper.

Even more astonishing is the attitude of CIPAS regarding the burden of proof, the presumption of guilt, and the right to remain silent. It ignores due process and does whatever it pleases. CIPAS even demands the authority to conduct searches of "premises where it is not welcome" despite insufficient evidence, based on the presumption of guilt.

Searches of public organizations for evidence of illegal conduct require police officials to present sufficient evidence to the court for the issuance of search warrants, in order to protect innocent parties. Today however, CIPAS can unilaterally presume illicit conduct and ignore judicial rulings. It can use the Act Governing the Handling of Ill-gotten Properties by Political Parties and Their Affiliate Organizations to ram through tailor made legislation. It can presume guilt, enforce ex post facto laws, and ignore statutes of limitations. These provisions have been in force for 71 years. CIPAS is using a single law to destroy our entire judicial system.

At the core of democracy is the rule of law. Legal abuses by CIPAS reveal how the DPP government is destroying the basic values ​​of democracy. The reason CIPAS is so bold, is of course President Tsai Ing-wen and her policy of transitional justice. Tsai Ing-wen and the DPP government are the driving force behind this subversion of democracy. They bear responsibility for the destruction of democracy.

Hannah Eulan, a German political theorist, cited the trial of Adolf Eichmann, a Nazi war criminal, to show that when the majority of individuals in society refuse to think, collective madness will ultimately push the whole society to commit the ultimate crime. "In politics, obedience is tantamount to support." People must not assume this matter has nothing to do with them. Some people on Taiwan still regard the KMT as a “bandit regime” and seek to remove it. But next to the DPP, the KMT pales by comparison. When Taiwan's democratic values and constitutional foundations are eroded, public silence will be the chief culprit.

社論》集體緘默是黨產會毀憲幫凶
2016/11/30 下午 07:54:26  主筆室

行政院不當黨產處理委員會上周決議，中央投資公司、欣裕台公司為國民黨不當黨產，依據《不當黨產處理條例》，兩公司股權將移轉國有。行政院院長林全隨即邀集相關部會討論，決定立即成立接管小組接管。由於黨產會的連續作為引發各界爭議，不僅程序違法，甚至有違憲之虞，但是黨產會主委顧立雄仍然一意孤行，蔡總統和民進黨必須負起最大責任，民眾更不能認為事不關己而袖手旁觀。

黨產會自從開始運作以來，就像拿了尚方寶劍一樣，全然不顧法律程序和正義，9月間就逕自發函台灣銀行和永豐銀行，不得隨意讓國民黨提領存款；後經台北高等行政法院認定其合法性有疑義，國民黨依法可以動用存款，但黨產會對兩銀行祭出暫停提領匯出的行政處分，持續凍結國民黨帳戶至今，這種無視於法院裁決的行徑，簡直就是法院的太上皇。

上周黨產會將中投公司和欣裕台公司收歸國有的決議，也違背了憲法精神。首先，根據顧立雄的宣示，這是過去黨國一體的年代，政府與國家組織交互連結，單一政黨利用主導地位，所獲得不法資源，收歸國有是轉型正義的真諦。但是國民黨取得財產大都在民國36年12月25日行憲以前，該時期並非在現行憲法規範下，因此應依當時等同憲法的《中華民國訓政時期約法》處理。約法規定黨政一體，現行《不當黨產處理條例》逾越憲法行憲時期，則需遵循約法「以黨領政」的規範，更何況當時國民黨從大陸攜來黃金與政府財產互有挹注。

其次，依據黨產會調查，中投為國民黨於1971年購置2億元公債所成立，之前黨營事業僅有2年小有盈餘。黨產會認定民國60年成立的中投公司是國民黨附隨組織，可是依照當時的《公司法》與《人民團體法》均未明文禁止政黨投資；《人團法》更是民國60年才有開放黨外組黨之雛議。因此，縱然黨產會認定中投公司是由購置2億元公債而來，不能全盤否認股東的投資、蕫監事會的經營與其他資金的挹注，更不用說轉投資的子公司仍具有獨立的法人人格與獨立的股東會，這些都是憲法保障人民財產權的範圍。

最後，行政院或黨產會發言人一再強調，依《行政訴訟法》第116條規定，中投與欣裕台股權收歸國有的處分之執行，不會因國民黨提起行政訴訟而停止；也預測縱使國民黨聲請釋憲，也不會影響黨產會作業進度。這種無視司法並揚言挑戰司法、高舉轉型正義大旗的黨產會，將以行政權力對抗司法程序，縱然未來法院有不利判決，都可質疑法院判決不當。

令人驚愕的是，黨產會以「舉證責任倒置」、「有罪推定」與「排除緘默」等不當手段，毋須踐履正當程序便可恣意妄為；連黨產會本欲行使黨史館的調閱權或搜索權，都能夠以「不去一個不歡迎我們的地方」、「已經掌握相關事證因此不去」等，以有罪推定的立場放話表態，令人匪疑所思。

我國法律對於人民團體的行政檢查或是違法事證之調查，檢警人員進行搜索都要以足夠證據向法院申請核發「搜索票」，以利當事人自我無罪之保護。而今，黨產會卻能片面認定不當，無視司法審查到這種地步。以《不當黨產處理條例》個別性、針對性立法，又採用「有罪推定」、「溯及既往」、「排除消滅時效」等手段追究71年之久，難道不是用極權式不當的特別法去破壞我國的司法體系嗎？

民主的核心價值就是法治，黨產會的濫權讓我們活生生地見識到民進黨政府的行事是如何在崩解民主的基本價值，黨產會敢於如此膽大妄為，當然是秉持著蔡英文總統推動轉型正義的政策，蔡英文和民進黨政府就是民主逆流的推手，應該負起裂解民主的責任。

德裔政治理論思想家漢娜‧鄂蘭以納粹戰犯阿道夫‧艾希曼的審判為例，說明當社會上的大多數個人不思考，集體的瘋狂，最終將把整個社會推向極致的犯罪，她說「在政治中，服從就等於支持。」民眾不要以為事不關己，在台灣社會固然有一部分人視國民黨為寇讎，必欲除之而後快，但是相較於國民黨，民進黨的作為更值得深思，當台灣的民主價值和憲政基礎被侵蝕的時候，沉默就會是最大的幫凶。