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Pan-blues are bound to commit same errors

Using their legislative majority, the opposition parties are trying to pass a draft bill for establishing a national communications commission (NCC). It is a repeat of the process that we saw with the 319 committee statute and it is also destined to fail.

The last time, the legislation was promoted with intense fervor. And what happened in the end? It was defeated by a constitutional interpretation which ruled the law unconstitutional.

This defeat made the Chinese Nationalist Party (KMT) and the People First Party (PFP) the subject of much ridicule. In addition, the two lawsuits attempting to nullify last year's presidential election and its results have become the most negative aspects of Taiwan's democratization.

The pan-blue camp version of the NCC bill has many flaws and internal contradictions, quite apart from Article 4, which is patently unconstitutional. If this is subject to another constitutional interpretation, the pan-blue camp will make themselves a laughingstock once again.

Constitutional Interpretation No. 585 on the 319 Committee Statute upheld the separation of powers, ruling that there are limits to legislative power, and that it should not interfere with the independent exercise of power by other government agencies, which is protected by the Constitution. The interpretation also stated that government leaders have executive privilege according to administrative right, and that the legislative branch shall respect such executive privilege.

Is the NCC bill considered an exercise in executive privilege? Article 2 of the NCC bill states that authority over the matters covered by the bill was originally vested in the Government Information Office, the Ministry of Transportation and Communications and the Directorate General of Telecommunications. As these bodies are part of the executive, the NCC, too, must necessarily be part of the executive structure, and the right of appointment must also belong to the executive. The legislature has no right to intervene in this matter.

In light of the legislature's responsibility to monitor the Cabinet, the Cabinet's version of the NCC bill states that legislators can be granted the right to approve appointments. This is in line with the democratic principle of checks and balances. Indeed, the government's version of the bill, from the matter of appointments to the commission's operations, is fully constitutional, while that of the opposition is not.

Since the opposition's version states that commission appointments should be allocated on the basis of the proportion of legislative seats held, why does it also state that the premier shall nominate members according to the legislature's recommendation list? This is because lawmakers know that nominations are the Cabinet's administrative right, and this right cannot be denied.

The system of checks and balances can only operate when the rights of nomination and approval belong to different branches of the government.

The opposition is perfectly clear on this issue, but in order to appropriate the right of nomination, they have come up with the formulation of the "premier making nominations on the basis of a list compiled by the legislature, after which they ratify the appointments." Clearly, this formulation violates both substantial and procedural justice.

The opposition's version of the NCC bill is meant to reassert party-state control over the media. But because the bill is manifestly unconstitutional, even if the opposition is able to push it through, it will eventually have to face a constitutional interpretation.

Therefore, they are bound to repeat the debacle of the 319 committee statute all over again.

Chin Heng-wei is editor in chief of Contemporary Monthly magazine. TRANSLATED BY EDDY CHANG
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