A decision yesterday by the National Communications Commission (NCC) to stop enforcing two articles in the Radio and Television Act (廣播電視法) has triggered questions from legal experts and lawmakers about its legality.
Article No. 28 of the act states that television programs can be imported or exported only with the commission’s permission, while Article No. 29 states that radio and television stations should not broadcast a domestic program abroad before obtaining approval from the commission.
Spokesperson Yu Hsiao-cheng (虞孝成) said the commission decided to revisit the two articles after reviewing an application by Taipei Pop Radio in March to have one of its programs air on Shanghai East Radio.
“Though we quickly granted the radio station permission to do so, we also found that these two articles, which were stipulated in 1976, were outdated and contradicted the spirit of the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights,” Yu said.
Although not a UN member, Taiwan has voluntarily abided by the two covenants since 2009 after they were passed by the legislature.
Article 19 of the International Covenant on Civil and Political Rights states that everyone shall have the right to hold opinions without interference, and the right should include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers.
Yu said the commission yesterday ruled that it would eliminate the two articles when it proposes an amendment to the act later.
In the meantime, the commission would stop accepting applications for permission to export or import radio or television programs, Yu said, adding it is authorized to do so by the Administrative Procedures Act (行政程序法).
However, Yu added that television programs imported from China are regulated by the Act Governing Relations between the People of the Taiwan Area and the Mainland Area (臺灣地區與大陸地區人民關係條例) and permission to import Chinese programs falls under the jurisdiction of the Ministry of Culture.
Chien Hsu-cheng (簡旭徵), acting director of the commission’s communication content department, said that the Taipei Pop Radio case was the only occasion that the commission had to apply the two articles in the Radio and Television Act. This means the articles have never been enforced to regulate programs imported from Japan, South Korea or other countries.
However, legal experts challenged the commission’s decision, with some saying it had violated procedures on how laws should be stipulated or eliminated, as well as infringed on the rights of the legislative branch of government.
They said the commissioners had acted as if they were the Council of Grand Justices in dealing with the law.
The Legislative Yuan said the commission must explain its legal basis of authority for stopping the enforcement of a law without the legislature’s approval.
In defense of its decision, the commission said it had consulted the Ministry of Justice before arriving at a conclusion.
“The ministry had informed us that before the administrative procedures of the proposed amendment are completed, the two covenants have precedence over the Radio and Television Act if the latter has regulations contradicting the former,” the commission said in a statement.
It added that the ministry had stated that the commission has the administrative authority to determine if such a contradiction exists.
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