Who Made Wellington Koo Judge, Jury, and Executioner?

Who Made Wellington Koo Judge, Jury, and Executioner?
United Daily News Editorial (Taipei, Taiwan, ROC) 
A Translation 
November 7, 2016

Executive Summary: In September, the “Ill-gotten Party Assets Settlement Committee”, or CIPAS, ordered Bank SinoPac to freeze the KMT's accounts. It also froze KMT checks issued by the Bank of Taiwan, preventing the KMT from paying its employees. Now however, the Taipei High Administrative Court has ruled that CIPAS may have broken the law, and has ordered it to cease and desist. This ruling is a slap in the face for CIPAS, which has running rampant for several months.

Full Text Below:

In September, the “Ill-gotten Party Assets Settlement Committee”, or CIPAS, ordered Bank SinoPac to freeze the KMT's accounts. It also froze KMT checks issued by the Bank of Taiwan, preventing the KMT from paying its employees. Now however, the Taipei High Administrative Court has ruled that CIPAS may have broken the law, and has ordered it to cease and desist. This ruling is a slap in the face for CIPAS, which has running rampant for several months.

The High Administrative Court ruled on the following grounds: First, Bank SinoPac is a private sector entity. It lacks the authority to freeze depositors' accounts. CIPAS ordered the bank to cease “the fulfillment of its statutory obligations". Its order was ill-defined. Bank SinoPac lacks the authority to determine what constitutes "the fulfillment of statutory obligations." Second, CIPAS ordered the Bank of Taiwan to freeze nine promissory notes issued by the KMT. But according to the "Act Governing the Handling of Ill-gotten Properties by Political Parties and Their Affiliate Organizations", the Bank of Taiwan was not a KMT debtor, and had no authority to impose such sanctions. Third, the KMT account at Bank SinoPac is for the payment of staff salaries. The freeze prevents the KMT from paying its employees. The Taipei City Labor Bureau has intervened, revealing the seriousness of the emergency.

The High Administrative Court judgment can be summed up in two sentences: CIPAS must obey the law and may not do whatever it damned well pleases. This is a clear and solemn reminder to Wellington Koo and CIPAS: Do not become a monster that abuses its power. You may not assume the role of judge, jury, and executioner.

When CIPAS was established, people hoped it would purge the remnants of party government equivalence, and establish a more equitable environment for party competition. CIPAS went into action soon after the change in ruling parties. It enjoyed some degree of public support. Even the KMT leadership felt the need for self-examination, and agreed that the party should divest itself of all its assets. Unfortunately, these conditions gave Wellington Koo the impression that he wielded unlimited power, that he was an invincible Iron Man who could attack and destroy whomever he wished. CIPAS was hastily slapped together. Its actions have been tyrannical. It has suddenly frozen accounts, suddenly prohibited the cashing of checks, and suddenly concluded that this or that business or asset was “improperly acquired", and imposed prohibitions or punishments. Its actions have clearly not been about recovering party assets, but about wiping out the KMT.

In short, under the aegis of the Executive Yuan, CIPAS has become a monster with unlimited power. It sees itself as policeman, investigator, prosecutor, and judge, all in one. Wellington Koo, being the lawyer that he is, has seized runaway power. The key factor was the Legislative Yuan's passage of the "Act Governing the Handling of Ill-gotten Properties by Political Parties and Their Affiliate Organizations" in the middle of this year. Legislators failed to consider whether legislative means were commensurate with legislative intent. In a murderous rage, the ruling party rammed the bill through. An unsound bill fell into the hands of the ambitious Wellington Koo, and rapidly morphed into something very different.

For example, CIPAS may have the authority to declare that the KMT's deposits with Bank SinoPac were "illicit party assets”. But did it have the authority to order the bank to freeze the KMT's bank accounts? The answer is no, at least according to the Taipei High Administrative Court. In fact, according to the provisions of the Banking Act, absent a legal decision, a bank may not stop payment on deposits or remittances based on demands by third parties. The provisions of the banking law protect private property from unnecessary interference or restrictions. They maintain freedom and stability within the financial order. Can we allow this order to be destroyed by the arbitrary actions of CIFAS?

CIPAS also declared that the Central Investments Company or Xinyu-Taiwan Enterprises were KMT "affiliated organizations". But the Tsai government has a long way to go before it can classify the tens of billions of dollars of assets in these two companies as state owned. Modern enterprise investment and cross-shareholding makes it impossible to shut down the Central Investments Company without affecting other companies. When the "Act Governing the Handling of Ill-gotten Properties by Political Parties and Their Affiliate Organizations" was formulated, these factors were overlooked. If the Tsai government fails to dot its “i”s and cross its “t”s when dealing with the party assets issue, it will be remembered as a party loots the nation's assets. It will also make many private businesses uneasy. When Changhua County forced Taiwan Chemical's Changhua plant to close, was it not inspired by CIPAS tyrannical behavior?

At this stage, CIPAS must first inventory assets. Only then can it limit and confiscate assets. It must carefully consider the legitimacy of its actions. It must not assume the role of judge, jury, and executioner. CIPAS does not have the authority to gobble up everything it sees. It is under the aegis of the Executive Yuan. If it arrogates to itself the authority of judges, it has vastly exceeded its authority.

聯合報社論／誰讓顧立雄當警察又扮法官？
2016-11-07 02:05:19 聯合報 社論

「不當黨產處理委員會」九月間要求永豐銀行凍結國民黨在該行的帳戶，同時凍結國民黨開出的台灣銀行支票，造成該黨發不出員工薪水。台北高等行政法院就此作出裁決，認為黨產會的處理「合法性」有疑義，要求停止執行。這項裁決，無異是對「黨產會」數月來的橫衝直撞，賞了一記耳光。

高等行政法院裁決的理由是：第一，永豐銀行是私人企業，並無扣押存款人帳戶款項的權力。黨產會要求該銀行除有合於「履行法定義務」者外均暫停提領，則欠缺明確性，永豐銀並無權力認定何謂「履行法定義務」。第二，黨產會命令台灣銀行凍結國民黨九張本票，但根據《不當黨產條例》，台銀並非國民黨的「債務人」，無權作此禁制處分，黨產會的命令「合法性」有問題。第三，國民黨在永豐銀的帳戶是發放員工薪水之用，因扣押而無法支付，台北市勞動局已介入處理，可見情況緊急。

高等行政法院這些裁決，總結可以歸納為兩句話：討黨產必須依法而行，不可恣意而為。這也是對顧立雄和他所領導的黨產會一個清晰而嚴肅的提醒：勿當權力怪獸！不可自扮警察，又要身兼檢察官和法官。

「黨產會」成立時原本甚受外界期待，認為可以趁機清理黨政不分年代的歷史遺緒，並建立更公平的政黨競爭環境。黨產會在政黨輪替後迅速展開運作，具有一定的民意支持；連國民黨中央都自我反省，宣示同意黨產歸零。遺憾的是，這樣的社會氣氛卻給了顧立雄一種「權力無限」的幻覺，以為自己是「無敵鐵金剛」，想打誰就打誰，要消滅誰就消滅誰。因此，除了組織過程草率，運作方式更是霸氣逼人，忽而下令凍結帳戶，忽而下令禁止支票兌現，甚至驟而推斷某某企業財產是「不當取得」，下令禁止處分。如此作法，似已志不在討黨產，而在置國民黨於死地。

簡言之，設在行政院底下的「黨產會」，卻自以為集警、調、檢、審四種大權於一身，實已變成一隻權力無限的怪獸。追根究柢，除了顧立雄以律師風格驟獲授權而暴走之外，最主要的因素是年中立法通過《政黨及其附隨組織不當取得財產處理條例》時，根本不曾認真思考立法的旨意和手段是否相稱，執政黨就在一片殺聲中草率過關。一部不健全的法案，落在野心勃勃的顧立雄手上，也就愈發變調走樣。

舉例而言，黨產會或許有權認定國民黨在永豐銀行的存款為「不當黨產」，但它有沒有權力要求永豐銀行凍結國民黨的帳戶呢？至少，台北高等行政法院所給的答案是否定的。事實上，根據《銀行法》的規定，除非有法律判決，銀行不得根據第三方的要求停止給付存款或匯款。銀行法的規定，一方面在保護私有財產免於無謂的干擾或限制，另一方面也在維護金融秩序的自由和安定；這樣的秩序，能因為黨產會的恣意行事，就遭到破壞嗎？

再如，黨產會定調中投或欣裕台企業為國民黨「附隨組織」，但這距離蔡政府可以將兩家公司上百億資產一舉收歸國有，恐怕仍相當遙遠。原因是，以現代企業的投資及交叉持股模式，關掉中投公司而不連帶牽扯其他企業，恐不可能；但這些在制訂黨產條例時，均未仔細思考。若處理時缺乏細緻、合法的步驟處理，蔡政府不僅將留下「強徵民產」的惡名，也會讓許多民間企業感到惴惴不安。試想，彰化縣府稍早強令台化彰化廠關閉，難道不是受黨產會霸道作風的影響所致？

我們認為，黨產會現階段最好先做好財產清查的工作，在跳到「禁」與「沒收」的步驟之前，先想清楚自己行動的合法性，搞清楚法律的競合關係，切勿再演出自扮警察兼法官的鬧劇。黨產會沒有通吃的權力，設在行政院下的機構若自扮法官，未免撈過界太遠。