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(釋字第 644 號 )      友善列印PRINT  
Interpretation

J.Y.
Interpretation

NO.644 

Date

2008/6/20

Issue

Is it constitutional for the Civic Organizations Act to prohibit the establishment of associations that advocate Communism or the partition of national territory?

Holding

Article 2 of the Civic Organizations Act stipulates that: “[t]he organization and activities of a civic association shall not advocate Communism or the partition of national territory.” The front portion of the first paragraph of Article 53 of the same Act provides that “no permission shall be granted … for those applicants/civic associations that violate Article 2.” This amounts to allowing the governing authority to conduct a review of the content of a person’s political speech to determine whether any statement therein “advocate[s] Communism or the partition of national territory” prior to the establishment of an association, and as the ground for disapproval. This has clearly exceeded the scope of necessity and is not in conformity with the purpose of constitutional protection of people’s freedom to associate and freedom of speech. Therefore, within the scope of this Interpretation, [the indicated statutory provisions] are deemed invalid as of the date this Interpretation is issued.

Reasoning

Any person who brings forth litigation alleging his/her constitutionally protected rights having been unlawfully infringed or violated may, in accordance with Article 5, Paragraph 1, Section 2 of the Constitutional Interpretation Procedure Act, petition this Yuan to interpret the Constitution on the ground that the applicable laws or regulations relied upon by the court of final judgment contravene the Constitution. The scope of review by this Yuan is not limited to those [laws and/or regulations] specified in the petition, and may extend to the underlining substantive laws or regulations based on which the final judgment should be rendered. The present petition only alleges that Article 2 of the Civic Organizations Act contravenes the Constitution, among other things, whereas Article 2 states, “[t]he organization and activities of a civic association shall not advocate Communism or the partition of national territory[,].” It is a provision that concerns actus juridicus (a juristic or legal act), which must be applied in combination with the front portion of the first paragraph of Article 53 of the same Act, “no permission shall be granted … for those applicants/civic associations that violate Article 2[,]” which concerns the legal effect. Given that the judgment of the Supreme Administrative Court, (90) pan No. 349, which upheld the governing administrative agency’s decision to deny the petitioners’ application for the establishment of a political organization for violation of Article 2 of the Civic Organizations Act, in effect and in substance touches upon the application of the above stated the front portion of the first paragraph of Article 53 of the same Act, it shall be jointly reviewed [by this Interpretation].

The purpose of Article 14 of the Constitution, which grants the freedom of association, is to protect the right of the people to form associations and participate in their activities based upon mutual consent, and to ensure the sustenance of the associations, self-determination regarding their internal constitution and affairs as well as freedom to [conduct] external activities. In addition to the protection of the freedom of people to develop individual characteristics through organized formats, the freedom of association further encourages those with a sense of citizenry to actively participate in socio-economic and political affairs through the formation of [civic] associations. Depending upon different individual meanings, different social systems or democratic constitutional systems, organizations may be subject to different legal protections and restrictions. Yet each respective protection of the freedom of association is based upon each individual’s free will to organize, and the level of restrictions considered the most severe are those designed to control and limit such freedom of association. Therefore, whether any or all such legal restrictions and grounds for approval or disapproval are proportional and in compliance with Article 23 of the Constitution shall be subject to stringent scrutiny to meet the original purpose of having a constitutionally protected freedom of association.

The Civic Organizations Act categorizes civic associations into occupational, social and political organizations. All of them are not-for-profit in nature with an occupational organization being formed with work units, institutions or individuals in the same occupation for the purpose of coordinating relationships within that occupation, enhancing mutual benefit, and fostering socio-economic construction (Article 35); a social organization being formed by individuals or organizations for the purpose of promoting cultural, academic, medical-therapeutic, health, religious, philanthropic, gymnastic, benevolent, social services or other public interests (Article 39); and a political organization being formed by nationals with mutual democratic political ideas to promote the development of political will, and the enhancement of political participation (Article 44).

Article 2 of the Civic Organizations Act stipulates, “[t]he organization and activities of a civic association shall not advocate Communism or the partition of national territory.” The front portion of the first paragraph of Article 53 provides, “no permission shall be granted … for those applicants/civic associations that violate Article 2.” Thus, it is clear that this law may disapprove the establishment of a not-for-profit civic association on the ground that it advocates Communism or the partition of national territory.

Freedom of expression encompasses self-fulfillment, exchange of ideas, pursuance of truth, satisfying people’s right to know, and the promotion of all kinds of reasonable political and social activities, a mechanism for the normal development of a democratic and diverse society (see J. Y. Interpretation No. 509). Any restrictions by law on freedom of expression must meet the principle of proportionality. The use of so-called “advocating Communism or partition of national territory,” each constituting a kind of political advocacy (or speech), as grounds for disapproving the establishment of a civic association amounts to bestowing on the governing authority (or agency) the power to review the content of the speech itself, which directly restricts the people’s fundamental right of free speech. Article 5, Paragraph 5 of the Amendment of the Constitution of the Republic of China provides, “[a] political party shall be deemed unconstitutional in the event its goals or activities endanger the existence or the democratic constitutional order of the Republic of China.” Since there is no prerequisite that the organization of a political party should seek prior approval, a political party may be disbanded only by the judgment of the Constitutional Court after it has been established and its goals or activities have been deemed to endanger the existence or the democratic constitutional order of the Republic of China. Conversely, disapproval based on Article 2 of the Civic Organizations Act gives the governing authority (or agency) the power to conduct substantive review of the content of such speech before an organization is established. As such, if it should discover that an association advocates the above-mentioned activities, and the facts [collected] at the time are sufficient, the governing authority may then revoke (which has been amended to “repeal” as of December 11, 2002) the approval in accordance with the latter portion of the first paragraph of Article 53, as amended and promulgated on January 27, 1989, to achieve the purpose of disbandment. If disapproval is rendered from the outset of a petition to form a civic organization, it is not different from the prohibition of establishment of a civic association merely on the ground that it advocates Communism or partition of national territory. This has clearly exceeded the scope of necessity under Article 23 of the Constitution, and is not in conformity with the purpose of constitutional protection of people’s freedom to associate and freedom of speech. Therefore, Article 2 and the front portion of the first paragraph of Article 53 of the Civic Organizations Act, as indicated above, shall be deemed invalid within the scope of this Interpretation as of the date this Interpretation is issued.

Translated by Professor Andy Y. Sun

Opinion
(Files)

Chinese only

 

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