Constitutional court rulings and political response

Commission (hereinafter NCC Organic Act) was passed.²² Surrounded by protests and controversies, the commissioners were appointed in accordance with such a partisan formula²³ and the NCC was established on February 22, 2006. Not

surprisingly, the NCC quickly renewed the license of BCC²⁴ and found neither legal violations nor irregularities in the KMT’s sale of its shares in the aforementioned three media companies.

3. Constitutional court rulings and political response

In July 2007, the Constitutional Court (hereinafter Court)rendered Interpretation No. 613, finding the way that commissioners were appointed as in violation of the Constitution as it deprived the Premier of his powers in the determination of commissioners.²⁵ The Court first discussed about whether it was constitutional to establish such a so-called independent commission, and if the answer would be affirmative, it would then discuss how commissioners would be appointed and whether the current way of appointment violated the Constitution.²⁶

In terms of the first issue, the Court reasoned that “under the principle of administrative unity, the Executive Yuan must be held responsible for the overall

22 The English translation of the NCC Organic Act is available

at http://www.ncc.gov.tw/english/news.aspx?site_content_sn=17&is_history=0 (last visited, Apr. 10 2009)

,

23 As a gesture to protest, those commissioners who were sided with the DPP government resigned their post immediately after their appointment. They also urge their colleagues sided with the KMT to resign in order to rescue integrity of this newly established institution.

24 The license was renewed in 2006. For the statement of the NCC,

see http://www.ncc.gov.tw/chinese/news_detail.aspx?sn_f=755 (last visited, Apr. 10, 2009)

25 J. Y. Interpretation No. 613 (2006/7/21). For the text in English, see http://www.judicial.gov.tw/

26 There was also a minor legal -but big in terms of political- issue concerning pending decisions at the GIO that were transferred by the NCC Organic Act to be reviewed by the NCC. The Court, however, did not find it as unconstitutional. As a result, the pending decision concerning the media company previously owned by the KMT was constitutionally transferred and remade by the NCC. Not surprisingly, the decision was in favor of the media company. See also supra note 23.

performance of all the agencies subordinate to it, including the NCC.” Because of the principle of administrative unity, the establishment of independent agency must be regarded as exceptional and can be justified “only if the purpose of its establishment is indeed to pursue constitutional public interests.”²⁷ The Court derived the

exceptionality of creating independent commissions from the text of the Constitution, administrative unity, and principles of democracy as well as accountability. The Court reasoned:

“….The administration must consider things from all perspectives.

No matter how the labor is to be divided, it is up to the highest

administrative head …to direct and supervise so as to boost efficiency and to enable the state to work effectively as a whole… Article 53 of the Constitution clearly provides that the Executive Yuan shall be the highest administrative organ of the state,…thus enabling all of the state’s

administrative affairs,… , to be incorporated into a hierarchical

administrative system where the Executive Yuan is situated at the top.…

Democracy consists essentially in politics of accountability. A modern rule-of-law nation, in organizing its government and

implementing its government affairs, should be accountable to its people either directly or indirectly. …the Constitution is also intended to hold the Premier responsible for all of the administrative affairs under the control and supervision of the Executive Yuan,…

Accordingly, where the Legislative Yuan establishes an independent agency through legislation, separating a particular class of administrative affairs from the tasks originally entrusted to the Executive Yuan,

removing it from the hierarchical administrative system and transferring it to an independent agency so as to enable the agency to exercise its

functions and duties independently and autonomously pursuant to law, the administrative unity and the politics of accountability will inevitably be diminished.²⁸

27 Id.

28 Id

With regard to the second issue, the Court found that the way of selecting and appointing NCC commissioners “deprive the Premier of the power to decide on personnel affairs of the Executive Yuan substantially,” and “thus violating the principles of politics of accountability and separation of powers.” The design of partisan representation was criticized by the Court as against the impartiality and neutrality of the NCC.

“…it is very clear that the Executive Yuan, in fact, has mere nominal authority to nominate and appoint …members of the NCC. In essence, the Premier is deprived of virtually all of his power to decide on personnel affairs. In addition, the executive is in charge of the enforcement of the laws whereas the enforcement depends on the personnel. There is no administration without the personnel. Accordingly, the aforesaid

provisions,…, are in conflict with the constitutional principle of politics of accountability, and are contrary to the principle of separation of powers since they lead to apparent imbalance between the executive and legislative powers.

…Although the lawmakers have certain legislative discretion to decide how to reduce the political influence on the exercise of the NCC’s authorities and to further build up the people’s confidence in the NCC’s fair enforcement of the law, the design of the system should move in the direction of less partisan interference and more public confidence in the fairness of the said agency. Nevertheless, the aforesaid provisions have accomplished exactly the opposite by inviting active intervention from political parties…and, in essence, nominate, members of the NCC based on the percentages of the numbers of their seats, thus affecting the impartiality and reliability of the NCC in the eyes of the people who believe that it shall function above politics.²⁹

Despite the finding of unconstitutionality, the Court did not immediately void the relevant provisions. It declared that the said provisions would remain in effect by

29 Id

December 31, 2008 unless being revised earlier. It further added that “the legality of any and all acts performed by the NCC will remain unaffected” before its final nullification.³⁰

With the release of Interpretation No.613, many of the DPP leaders urged an immediate resignation by the NCC commissioners in order to facilitate prompt legislative actions. But the chief commissioner, Dr. Su, refused to do so. Instead, he released his determination to the public that he and his colleagues would continue to serve till January 2008, when the term of the current legislature would expire, and urged the legislature to complete revisions no later than such a date. The revised NCC Organic Act was completed by the end of 2007, and it stipulated that the NCC should be composed by seven members with a four-year term, appointed by the Premier with legislative approval. No party shall dominate more than half of its members.³¹

In January 2008, the KMT won a landslide in the legislative election that was undertaken by a new electoral rule in the constitutional amendment.³² The KMT was assured its political dominance and thus not at all hurried in implementing the revised law. In March, the KMT presidential candidate, Ma, Ying-jeou won the election and assumed office in May. In August, the second-term Commissioners of the NCC were appointed by the Premier appointed by President Ma with the approval of the

legislature where the KMT occupied almost three-fourth. Now the NCC continued its

30 Id.

31 For the revised text of Art. 4 of the NCC Organic Act,

see http://www.ncc.gov.tw/english/news.aspx?site_content_sn=17&is_history=0 (last visited, Apr. 10 2009

,

32 The constitutional revision was done in 2005 to reduce the seats in the parliament from 260 to 113 and to adopt proportional representation system with two votes (one vote for party and the other for candidates).

operation with seven commissioners, three from the backgrounds telecom, one from law, two from media, and one from economics.³³

33 Their respective backgrounds are available at the website of the NCC, http://www.ncc.gov.tw/default.htm (last visited, Apr. 10, 2009)

Table 1: Ministries, Commissions and Agencies of the Executive Yuan

Core ministries and commissions of the Executive Yuan

Ministerial-level agencies and commissions Independent Commission

III. The Operation of Independent Commission and its Legal and