On Aug. 11, the Chinese Nationalist Party (KMT) withdrew NT$520 million (US$16.6 million) and then had Bank of Taiwan issue 10 checks for NT$52 million each, to reportedly pay party employees’ salaries.
However, the Ill-gotten Party Assets Settlement Committee argued that since Article 34 of the Act Governing the Settlement of Ill-gotten Properties by Political Parties and Their Affiliate Organizations (政黨及其附隨組織不當取得財產處理條例) states that the act will go into effect as of the date of “promulgation,” the act allows banning the KMT from disposing of its assets after it was promulgated on Aug. 10.
For this reason, the committee has instructed the bank to ban the party from cashing its checks.
However, the KMT believes that, according to the law, the act did not take effect until Aug. 12. Since the party withdrew the money and then had the bank issue 10 checks the previous day, the committee had no right to freeze its bank account. Who is right and who is wrong?
For the committee, its ban on the KMT’s disposal of its assets is based on Article 9 of the act, which states that properties presumed to be obtained inappropriately according to Article 5-1 of the act may be banned from disposal from the date of promulgation.
DATE OF EXPIRY
The KMT, on the other hand, says that the act did not take effect until Aug. 12, based on Article 13 of the Central Regulation Standard Act (中央法規標準法).
It states: “While a regulation stipulated that the regulation shall be enforced from the date of enactment or publication, the regulation shall become effective since the third date of the enactment or publication date.”
After the act was promulgated on Aug. 10, it did not take effect until three days later, on Aug. 12. So the committee had no right to freeze the KMT’s account.
However, as mentioned, the party assets act states that the disposal of assets would be banned from the day the act was promulgated, instead of from the time the act take effect.
Even if there is no doubt about the legality of the KMT’s claim regarding the “effective date” of Aug. 12, it is unrelated to the “promulgation date.”
Therefore, it is not inappropriate for the committee to ban the party’s disposal of its assets starting on Aug. 10.
Nevertheless, the KMT is threatening to file a lawsuit against both the bank and the committee if the former continues to ban the party from cashing its checks.
If the party does indeed file a lawsuit, it is likely to be a winner irrespective of whether it wins or loses the case. If it wins, it would highlight that the committee’s administrative behavior is flawed, and claim that other instances of the committee’s conduct are also illegal.
If it loses, perhaps it would seek a constitutional interpretation from the Council of Grand Justices on whether the party assets act is unconstitutional according to Article 5-1 of the Constitutional Interpretation Procedure Act (司法院大法官審理案件法).
As it stands, since the small number of KMT legislators is fewer than one-third of the total number, the party would be unable to seek a constitutional interpretation through the legislature.
In that case, it has to find a new path to achieve its goal of seeking a constitutional interpretation. The committee should handle this with caution.
Yu Min-charng is a lawyer.
Translated by Eddy Chang
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