Liberty Times (LT): The legislature has passed 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). In your opinion, how does the act compare to similar legislation in Germany?
Huang Shin-hsin (黃世鑫):The German Federal Republic’s most effective tool in dealing with the assets of the communist party which formerly ruled East Germany was to deploy the federal republic’s code of criminal procedures. However, in Taiwan’s case the Legislative Yuan does not have that type of mechanism at its disposal; the ill-gotten assets act can only hand down administrative penalties.
However, this shortfall might be addressed through other means. For example, if prosecutors’ offices were integrated with the ill-gotten assets committee, prosecutors would be empowered to intervene and initiate criminal proceedings when necessary.
Photo: Chien Jung-Fing, Taipei Times
Otherwise, the process of reporting findings [to prosecutors] and filing charges are so time-consuming that the resolution of cases might be indefinitely delayed.
In addition, German law defines the regulatory object of its party asset laws broadly, while Taiwan’s act strictly defines the entities described as “affiliate organizations,” which could lead to a serious problem with loopholes. It is possible that the committee’s work will be controversial, and the organizations subjected to its regulatory powers are likely to dispute their political party-affiliated status by filing administrative appeals. Then the courts would be called upon to define what constitutes affiliate organizations. However, I believe those organizations would find winning such lawsuits a tall order.
LT: How should the government enforce the act after it is promulgated?
Huang: The organization of the committee and the selection of its members are going to be the decisive factors. The act stipulates that committee members are to serve four-year terms, a relatively long time. However, the act only specifically requires that the committee chairperson must be specially appointed, while the process for appointing the rest of the members is undefined.
In addition, the question remains whether the committee is to hold monthly meetings and whether the meetings are to be driven by the needs of its agenda.
If the function of committee members is limited to conducting formal meetings, then their assisting organizations would have to be highly empowered. For example, Germany’s “independent committee” has a secretariat that on paper has 162 staff, and about 85 staff in practice; staffers are divided into six groups depending on the organizations under scrutiny, and the body is disbanded upon completing its mission.
The cooperation of outside agencies is essential to the investigation and return of improperly obtained party assets. If the committee is understaffed, it cannot expect to obtain cooperation from other agencies. In addition, ways of dealing with outside agencies if they prove unwilling or incompetent are also needed.
For those reasons, the organization of the committee is highly important. It must have a charter that clearly regulates its internal structure and operations.
Whether the government is serious about dealing with party assets will become clear after it announces the list of committee member nominees and the proposed organizational structure of the committee. For example, if the government makes the Ministry of Justice and its subordinate agencies the assisting organizations of the committee, it will be obvious that it means business.
In addition, Germany’s independent committee members cannot be government officials or members of the judiciary. The role and function of the members of the committee will also need to be clarified.
Since the committee is to be under the jurisdiction of the Executive Yuan, it should nominate fair and professionally competent people and be held responsible for its success. By no means should political parties make the nominations, as that would most certainly doom the committee.
For example, if the parties submit the nominations, then the Chinese Nationalist Party (KMT) is almost guaranteed to nominate their most belligerent supporters, and any hopes of a rational discourse at committee hearings would be over.
LT: The KMT plans to initiate an international lawsuit based on a constitutional interpretation. How do you view this action?
Huang: The KMT wants to initiate an interpretation of the Constitution, but it should first clarify in what way the act is a violation of the Constitution.
Initially, when the Socialist Unity Party of Germany was succeeded by the Party of Democratic Socialism (PDS), the PDS also requested a constitutional interpretation, but the constitutional court of the Federal Republic of Germany rejected the request. The KMT might be under the impression that since the grand justices were all appointed by the party when it was in power, regardless of how it puts together its case, judges will rule in its favor and recognize a constitutional violation. However, I believe that judges would not simply turn their backs on their profession.
Why should a special law be established to deal with ill-gotten assets?
Because two issues need to be addressed: The need to acquire evidence to establish responsibility during handovers of government power, and to formally recognize that legal responsibility for an offender’s actions does not dissipate with time. That the passage of time has no influence on legal culpability is a basic tenet of law — it is not a principle of the Constitution.
There are World War II Nazi war criminals who have had to pay for their crimes at the ages of 80 or 90. Was there any doubt about their legal culpability? In addition, “transitional justice” refers to the transition from an authoritarian regime to a democracy. What needs to be dealt with are the actions of an authoritarian regime. This already goes beyond the remit of the Constitution, because in interpreting the Constitution there is “formal rule of law” and “substantive rule of law.” East Germany’s communist authorities were also arguably just acting in accordance with the regime’s constitution.
The KMT wanting to turn this into an international case is tantamount to making it an international joke. The KMT ought to change its attitude, rather than resisting and fighting like a cornered animal.
I sincerely advise KMT members to track down the head of East Germany’s PDS to better understand the situation they find themselves in.
At the start of their transition the PDS also protested, calling for a constitutional interpretation and attempting to transfer assets to avoid liability. They established a group to protect party assets that set up front companies and faked overseas debts, transferring funds to overseas accounts.
However, some of the funds transferred overseas were frozen, while others were returned after lawsuits. Every time the PDS protested, they ended up losing in the elections, and so they eventually chose to cooperate with an independent committee that would decide what assets they could keep. Eventually it was decided that in accordance with “substantive rule of law,” only those assets confiscated by the Communist Party of Germany in 1933 could be kept, and they were therefore left with only a property in the forest consisting of one building, some land and two publishing houses.
Dealing with the KMT’s assets will take at least four years. During this period the KMT will have a hard time at elections, unless they abuse their power and pressure the committee. Their best course of action is to be cooperative, especially since most of their assets are hidden in private accounts and inaccessible by the party anyway. They would be much better off finding a way to come back from this. Their best strategy would be to give up all ideas aside from conforming to legal procedure and assisting government efforts to clear up their assets.
LT: Some feel that the ill-gotten assets issue is hard to clear up, and that efforts to do so will not meet expectations. Could this become the DPP’s “Taipei Dome” [a reference to the Taipei Dome project that appears to be dragging on indefinitely]?
Huang: In terms of the technical skills involved with the process, I do not think it will be as difficult as everyone imagines. Even if real-estate assets frequently change hands the land itself is still physically there. That portion of the assets at least will not go anywhere, because it is registered in someone’s name. Tax records and accounts of enterprises and investment companies associated with the party can be checked. Information just needs to be accessed and checked. However, it is possible that some accounts have fallen into debt.
Anyway, the aim of clearing up assets is not to recover any specific amount of funds, it is the procedure itself. If there is an attempt to fairly address transgressions and not gloss over things, but rather to speak honestly, even if land is returned to its original owner in the end, then that is a successful outcome.
Therefore, judging the success of the committee’s efforts is not about counting the assets that are recovered. Berlin initially estimated that the East Germans had ill-gotten assets worth about 3 trillion marks, but after 16 years only managed to recover 1.6 billion euros (US$1.79 billion at the current exchange rate). Would you call that a success or a failure? At least Germany was able to conclude the procedure.
The main goals of clearing up party assets are twofold: to re-establish justice and to provide equal opportunity. It would allow parties to compete fairly. Why was the KMT able to stay in power for so long? Because of its assets that have allowed it to cultivate support and build organizations. From the perspective of providing a fair playing field for political parties, the settling of the party assets issue will mean success.
Translated by Jonathan Chin and William Hetherington, staff writers
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