B. Creating independent commissions
2. The establishment of National Communication Commission and
that began to push through major bills for government reforms. One of the most important was the Standard Act of Central Executive Agencies and Organizations (hereinafter Standard Act) that was finally enacted on June 23, 2004. This Standard Act was the realization of the aforementioned constitutional provisions and was thought to be a framework guideline for the arrangement of central government agencies. It was in this Standard Act that the legal foundation for creating a real independent commission was provided for. The definition of independent commission is stipulated as “a collegial commission that acts independently in accordance with the law and without subject to supervisions of other organs”.12 Such an independent commission is designed to have five to seven full-time commissioners with fixed terms, appointed by premier13 with legislative approval. It is also added that certain number of commissioners shall not be from the same political party.14 Upon the passage of the Standard Act, the DPP government released its government reform package with a plan to reduce thirty-seven government agencies to only twenty-four and to formally recognize five independent commissions that include a National Communication Commission.15
2. The establishment of National Communication Commission and controversies
12 See Cl.2, Sec.1 Art. 3 of the Standard Act.
13 That is, the President of the Executive Yuan, who is appointed directly by President but is responsible to the Legislative Yuan, the parliament. See Sec. 1, Art. 3 of the Additional Article.
14 See Art. 21 of the Standard Act. This is different from the way that the American independent commission would have regulated. In the American context, no political party shall dominate half of the commissioners. The reason that the Standard Act did this was, not surprisingly, partly for a political compromise and partly for subsequent statutory enactments to set up the reasonable ratio. For example, the Organic Act of the National Communication Commission now requires that no political parties shall dominate half of the commissioners.
15 The five independent commissions are National Communication Commission(NCC), Central Bank, Financial Supervisory Commission, Fair Trade Commission, and Central Election Commission.
The passage of the Standard Act seemed to provide for a momentous
opportunity for government reform, and the DPP government pressed further on the creation of National Communication Commission. Party politics, however, worsened as President Chen continued into his second term in 2004. Losing the presidential race for the second time was unexpected by the KMT, which has never ceased to be the dominant political party in the Legislative Yuan. Facing the challenge, the KMT decided to usurp its legislative dominance and boycotted major legislation, policies and budget proposed by the DPP government.16 In contrast, aided with presidential victory, the DPP pushed for further progressive reforms, part of which targeted against the KMT on its large amount of party assets and party-controlled enterprises.
The KMT was itself a media tycoon that controlled China Television Company (CTV), Broadcasting Corporation of China (BCC) and Central Motion Pictures Company (CMPC). Pressed upon the issue of its party asset and perhaps faced with financial difficulty as a result of losing presidential campaign, the KMT under the chairmanship of Ma, Yin-jeou sold rather quickly its major shares in the three media companies to the China Times Group before the end of 2005. Suspicions abound, regarding whether there were any under-table deals or whether Chinese Communist Party was even involved. The Government Information Office (GIO), at the time still in charge of media regulation, vowed to undertake a thorough investigation.17
Against this political background, it was thus easy to understand why at the time the KMT and the DPP -to a certain extent- welcomed the proposal to establish the
16 The gunshot incident that took place one day before the presidential election in 2004 and its related legal disputes afterwards also exacerbated political confrontation between the KMT and the DPP.
17 The Office was under the Executive Yuan, hence controlled by the DPP government.
National Communication Commission (NCC).18 The KMT was pleased that the NCC would substitute the GIO, thus undermining the DPP government’s regulatory control over the media. On the side of the DPP, media reform had always been on its own agenda and it also endorsed the idea of a neutral regulatory commission.
Notwithstanding a thin agreement in the NCC creation, the two parties turned into serious confrontation as the KMT sought to entrench its political dominance in the composition of the NCC. The KMT -in defiance with the Standard Act19- came up with a novel way to appoint commissioners in accordance with the percentage of seats enjoyed by major political parties, thus leaving the Premier only ceremonial power in appointment.20 It should be noted that perhaps reactionary to the KMT’s partisan formula, some of the DPP government officials began defying the Standard Act and arguing that the NCC commissioners should be appointed directly by the Premier since all ministers must be appointed as such stipulated in the Constitution.21 A political minority in the parliament, the DPP found no way to stop the KMT’s partisan formula except petitioning its case to the Council of Grand Justices, the Constitutional Court. On November 9, 2005, the Organic Act of the National Communication
18 It should be noted that when it was made clear that the KMT might take more advantage in the creation of the NCC, some DPP members and government officials began to have a second thought on this and even opposed it strongly.
19 Art. 21 of the Standard Act provides that commissioners shall be appointed by Premier with legislative approval.
20 It was provided that a total of fifteen members of the NCC would be recommended based on the percentages of the numbers of seats of the respective parties (or political groups) in the Legislative Yuan, and, together with the three members to be recommended by the Premier, should be reviewed by the Nomination Committee, which would be composed of eleven scholars and experts as recommended by political parties (or political groups), again, based on the percentages of the numbers of seats of the respective parties (groups) in the Legislative Yuan, via a two-round majority review by more than three-fifths and one-half of its total members, respectively. And, upon completion of the review, the Premier shall nominate those who appear on the list as approved by the Nomination & Review
Committee within seven days and appoint the same list upon the confirmation by the Legislative Yuan.
See Sec. 2 & 3, Art. 4 (now abolished) of the NCC Organic Act.
21 See Art 56 of the Constitution.
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.