In a modern administrative state, the government agency in charge of regulating the communication and media services is a highly mission-oriented administrative organ whose ultimate goal should be professionalism and efficiency. however, we should review how such an organ is composed and make sure if its operation conforms to the constitutional principle of separation of powers and a system of checks and balances.
A supervisory body such as the US Federal Communications Commission (FCC) should operate independently and execute its task professionally, but in effect it still belongs to the executive. Even though the FCC has the right to enact regulations, it still has to be mandated by law and it is therefore not entitled to promulgate legislation. Moreover, although the FCC has the right to arbitrate disputes, any disputes still have to be resolved through the judiciary. Therefore, it does not enjoy any judicial power.
The FCC in the US is only one government agency responsible for regulating communication and broadcast services, and it does not enjoy unchallenged supremacy even in this area.
If Taiwan's legislators are determined to interpret the FCC's role as that of a government agency with administrative, legislative and judicial powers, and therefore assume that the proposed national communications commission (NCC) should also be an omnipotent agency, it will be the beginning of a political catastrophe.
If such an organ supervising the communication and media services is defined as a Cabinet-level agency, as it is in many countries, the problems relating to the balance of power and responsibility will become simpler, even under a coalition government, where there are precedents for the head of each government agency or its members being appointed in proportion to the vote garnered by political parties during the elections. Under the US system, there are also committees which in effect function as committees in a Cabinet system, and not all the supervisory bodies operate independently as the FCC does.
No matter what form such an organization takes, it certainly will be regarded as part of the executive if it is defined as a Cabinet committee, and the right to make appointments to such a committee will certainly rest with the premier, without having to obtain the consent of the legislature. As a result, the executive will be completely responsible for all the actions of such a supervisory body.
The supervisory body in charge of communication and media services must closely follow the Constitution to conform to the system of checks and balances and the idea of separation of powers. This is self-explanatory from the perspective of public law. An organ such as the FCC, which operates independently, is a typical government agency of the US presidential system. We also have to consider the advantages such an organization possesses.
In the classic US presidential system, members of the FCC are nominated by the chief of the executive branch (the president), and are formally appointed after approval from the US Congress. Whatever the regulations governing the number of members, their term and the qualifications, the right of nomination and appointment belongs exclusively to the executive. The authority of Congress extends only to the passive role of approving or rejecting nominations. This is a normal situation in a system of checks and balances.
Like other independent executive organs, it is needed to prevent the membership being dominated by a single party (of the five FCC commissioners, no more than three can be of the same party). The executive also has the right to appoint the FCC chairman, so the government executive is necessarily responsible for the actions of the FCC. Only in this way can a balance between power and responsibility be achieved.
If we compare the situation described above with the demand that the commissioners of the NCC be appointed based on the proportion of seats held by political parties, then it becomes clear that this is an attempt to recreate the controversy of the unconstitutionality of the 319 Special Shooting Truth Investigation Committee. What the lawmakers are trying to do is use a superficially fair method as a red herring through which they can get a grip on the executive power. Control over the executive's power to nominate commissioners is an infringement of the authority of the leader of the executive branch's (whether the president or the premier) right to make and terminate appointments.
If legislative power is to be divided based on the proportion of seats, then it should be made clear to the public that this is simply a way of dividing up political spoils in the course of a struggle to command executive power. It really has nothing to do with making the broadcasting industry more professional and efficient, nor with clarifying duties and responsibilities. In fact, it is totally contrary to this.
The lawmakers should not lie about creating an independent organization. If the positions were reversed, would the Democratic Progressive Party -- as an opposition party -- be willing to take responsibility for this administrative monstrosity?
If the issues of duty and responsibility are thrown out the window, then it won't matter who is the ruling party, the NCC will inevitably be a cause of endless trouble.
Liu Ching-yi is an associate professor of law at National Taiwan University.
Translated by Daniel Cheng and Ian Bartholomew
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