The Control Yuan, whose members were nominated by former president Ma Ying-jeou (馬英九), has passed an investigative report written by its members, Wang Mei-yu (王美玉) and Chang Kuei-mei (仉桂美), calling for a constitutional interpretation of the Act Governing the Handling 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).
However, the legislation in no way falls under the remit of the Control Yuan, so the request fails to comply with the requirements for a constitutional interpretation request, as found in Article 5 of the Constitutional Interpretation Procedure Act (司法院大法官審理案件法).
The Council of Grand Justices should decline the request and not do the work of the Chinese Nationalist Party (KMT) or the Control Yuan for them.
It has been reported that the Control Yuan hurried the passage of the request because Ma-nominated members wanted it passed before new members nominated by President Tsai Ing-wen (蔡英文) assumed their posts.
The findings of the report are identical to the content of a KMT news release titled Party assets act unconstitutional and illegal, KMT Chairwoman Hung Hsiu-chu (洪秀柱) hoping Grand Justices uphold justice.
Putting aside that the Control Yuan’s report has absolutely no legal basis, and focusing on what they contend, the basic argument — that the act is unconstitutional — is the same as the KMT’s, and is utterly lacking in democratic credibility or common sense by international law.
The Control Yuan said that the act presupposes a crime has been committed and requires the KMT has to prove its innocence, which is completely counter to the spirit of law.
If the KMT and Control Yuan members understood international law or even German law, they would know that the legislative principle behind the establishment of a criminal offense having been committed in the act in question is neither an issue of saying that it has already been established, nor of unconstitutionality.
According to Article 20 of the UN Convention against Corruption: “Each state party shall consider adopting such legislative and other measures as may be necessary to establish as a criminal offense, when committed intentionally, illicit enrichment, that is, a significant increase in the assets of a public official that he or she cannot reasonably explain in relation to his or her lawful income.”
In simple terms, the legislative logic behind the allocation of burden of proof complies with international law, and is absolutely devoid of the question of unconstitutionality that the Control Yuan and KMT legislators accuse it of.
Further, the independent commission set up in post reunification Germany to deal with party assets, made known in a 1992 resolution, that the burden of proof for the legitimacy of the Socialist Unity Party of Germany assets was with the party itself.
If Control Yuan members had the slightest international outlook or knowledge of democracy they would not have been misled by the KMT’s complaints.
According to Clause 1, Paragraph 1, Article 5 of the Constitutional Interpretation Procedure Act, the crux of whether the Grand Justices should do a constitutional interpretation on behalf of central government institutions depends on the respective powers of those institutions.
However, the powers legally invested in the Control Yuan have nothing to do with the regulations governing ill-gotten assets. The Grand Justices should act in accordance with Clause 3 of the same article; decline the request and not waste taxpayers’ money by doing the KMT’s dirty work.
Huang Di-ying is a lawyer.
Translated by Paul Cooper
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