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大法官解釋表頭

(釋字第 603 號 )      友善列印PRINT  
Interpretation

J.Y.
Interpretation

NO.603 

Date

2005/9/28

Issue

Are the relevant provisions of Article 8-II and III of the Household Registration Act, stating to the effect that the new ROC identity card will not be issued without the applicant being fingerprinted, unconstitutional?

Holding

To preserve human dignity and to respect free development of personality is the core value of the constitutional structure of free democracy. Although the right of privacy is not among those rights specifically enumerated in the Constitution, it should nonetheless be considered as an indispensable fundamental right and thus protected under Article 22 of the Constitution for purposes of preserving human dignity, individuality and moral integrity, as well as preventing invasions of personal privacy and maintaining self-control of personal information. (See J. Y. Interpretation No. 585) As far as the right of information privacy is concerned, which regards the self-control of personal information, it is intended to guarantee that the people have the right to decide whether or not to disclose their personal information, and, if so, to what extent, at what time, in what manner and to what people such information will be disclosed. It is also designed to guarantee that the people have the right to know and control how their personal information will be used, as well as the right to correct any inaccurate entries contained in their information. Nevertheless, the Constitution does not make the right of information privacy absolute, which means that the State may impose appropriate restrictions on such right by enacting unambiguous laws as far as such laws do not transgress the scope contemplated by Article 23 of the Constitution.

Fingerprints are important information of a person, who shall have self-control of such fingerprinting information, which is protected under the right of information privacy. However, the issuance of ROC identity cards will directly affect the people’s exercise of their fundamental rights. Article 8-II of the Household Registration Act provides, “While applying for an ROC identity card pursuant to the preceding paragraph, the applicant shall be fingerprinted for record keeping; provided that no national who is under fourteen years of age will be fingerprinted until he or she reaches fourteen years of age, at which time he or she shall then be fingerprinted for record keeping.” Article 8-III thereof provides, “No ROC identity card will be issued unless the applicant is fingerprinted pursuant to the preceding paragraph.” Refusal to issue an ROC identity card to one who fails to be fingerprinted according to the aforesaid provisions is no different from conditioning the issuance of an identity card upon compulsory fingerprinting for the purpose of record keeping. The failure of the Household Registration Act to specify the purpose thereof is already inconsistent with the constitutional intent to protect the people’s right of information privacy. Even if it may achieve such objectives as anti-counterfeit or prevention of false claim or use of an identity card, or identification of a roadside unconscious patient, stray imbecile or unidentified corpse, it fails to achieve balance of losses and gains and uses excessively unnecessary means, which is not in line with the principle of proportionality. The relevant provisions of Article 8-II and III of the Household Registration Act, providing to the effect that no ROC identity card will be issued unless an applicant is fingerprinted for record keeping, are inconsistent with the intent of Articles 22 and 23 of the Constitution, and thus shall no longer apply as of the date of this Interpretation. Needless to say, the replacement of ROC identity cards, which follows the remaining applicable provisions of the Household Registration Act, may still carry on.

Where it is necessary for the State to engage in mass collection and storage of the people’s fingerprints and set up databases to keep same for the purposes of any particular major public interest, it shall not only prescribe by law the purposes of such collection, which shall be necessary and relevant to the achievement of the purposes of such major public interest, but also prohibit by law any use other than the statutory purposes. Having taken into account the contemporary development of relevant technologies, the competent authority shall engage in the aforesaid collection in a manner that is sufficient to ensure the accuracy and safety of the information, and take any and all necessary protective measures both organizationally and procedurally as to the files of fingerprints so collected so as to be in line with the constitutional intent to protect the people’s right of information privacy.

Reasoning

This matter has been brought to the attention of this Court because eighty-five members of the Legislative Yuan, including Lai Ching-de, were of the opinion that Article 8 of the Household Registration Act as promulgated and implemented in 1997 is in violation of Articles 22 and 23 of the Constitution. They have, therefore, duly initiated a petition for constitutional interpretation in accordance with Article 5-I (iii) of the Constitutional Interpretation Procedure Act. Simultaneously, they have petitioned this Court for a preliminary injunction before an interpretation is delivered for this matter, declaring to the effect that the application of Article 8-I of the Household Registration Act be suspended for the time being.

In respect of the petition for the preliminary injunction, this Court has suspended the application of Article-II and -III of the Household Registration Act and dismissed the petition for the preliminary injunction regarding Article 8-I thereof by delivering J. Y. Interpretation No. 599 on June 10, 2005. Whereas, in respect of the petition for the constitutional interpretation, this Court invited the representatives of the Petitioners, the agencies concerned, scholars and experts and civilian organizations to appear at a hearing held on June 30 and July 1, 2005 in accordance with Article 13-I of the Constitutional Interpretation Procedure Act. In addition, representatives of the Petitioners and their agents ad litem, as well as the representatives and agents ad litem of the agency concerned, namely, the Executive Yuan, were also ordered to appear before the Constitutional Court for oral arguments on July 27 and 28, 2005. Expert witnesses were also invited to appear before this Court to present their opinions. It should be noted that, as for the scope of the interpretation, the Petitioners have narrowed it to the review of the constitutionality of Article 8-II and -III of the Household Registration Act.

The Petitioners have argued summarily that: (1) The petition at issue should be heard because it meets the requirements of Article 5-I (iii) of the Constitutional Interpretation Procedure Act. (2) Article 8-II of the Household Registration Act, in requiring that any national over the age of fourteen be fingerprinted at the time of applying for an ROC identity card, is unconstitutional for infringement of fundamental rights such as human dignity, personal freedom, right of privacy, personal rights and right to autonomous control of information, and for violation of the principles of proportionality, legal reservation, clarity and definiteness of law, as well as due process of law: (i) Fingerprinting information is part of abstract personality that is protected as one of the personal rights. Moreover, since fingerprinting information may be used in verifying a person’s identity, the disclosure and provision of such information are to be determined at the discretion of that person, which should be constitutionally guaranteed under the right of privacy and right to autonomous control of information. Article 8-II of the Household Registration Act, in compulsorily taking the people’s fingerprints and establishing databases, has not only trespassed upon one’s private life and domain where he or she may sculpt his or her own personality, thus infringing on the people’s personal rights, but also has imposed restrictions on the people’s right to autonomous control of their information, as well as their right of privacy. (ii) Article 8-II of the Household Registration Act, in failing to specify the purpose of taking fingerprints while requiring that any and all nationals over the age of fourteen be fingerprinted, is against the principle that any law limiting any fundamental right must spell out the purposes thereof. The so-called legislative purpose of “enhancing personal identity verification in household administration” is not substantially important and, moreover, is overly generalized and broad. Additionally, compulsory fingerprinting and keeping of such information may not effectively serve such legislative purposes as “identity verification” and “prevention of false claim of another’s identity” as alleged by the Ministry of the Interior, nor is it the least intrusive means to achieve such purposes. Therefore, it fails to keep a balance between the potential advantages it may gain and the damages it may cause and thus is in violation of the principle of proportionality. (iii) Compulsory fingerprinting and record keeping is an exercise of governmental power that substantially affect the people’s rights, which should be clearly prescribed by law. The legislative purposes of Article 8 of the Household Registration Act, as well as the uses of the fingerprinting and record keeping at issue, are vague and obscure. Besides, the provisions of Article 8-II of the Household Registration Act are merely applicable to those who reach the age of fourteen and apply for an ROC identity card for the first time. In the event that such provisions apply to all nationals over the age of fourteen at the time of overall replacement of identity cards, the principle of legal reservation will be violated. (iv) Compulsory fingerprinting is, in essence, a form of compulsory measure that must not be done unless in accordance with Article 8 of the Constitution and applicable criminal procedural laws. The existing provisions of the law, which enable an administrative agency to collect fingerprinting information of the people, is in violation of the principle of due process of law. (v) Global instances of consolidating fingerprints and certificates as required by other countries are more often than not limited to those certificates that serve particular purposes so as to facilitate the verification of identifications or qualifications. Even for those countries in favor of collection and use of biometric data of their people, they usually take the stance against a centralized biometric database. At present, the use of a biometric database is at best a trend in the making, rather than a universal and inevitable path taken by the international community. (3) Article 8-III of the Household Registration Act is unconstitutional for violation of the principle against irrational basis, as well as the principles of proportionality and equal protection: (i) Article 8-III of the Household Registration Act has compelled the people to be fingerprinted by conditioning the issuance of ROC identity cards on such fingerprinting. However, since ROC identity cards are not rationally related to the taking of fingerprints, it is in violation of the principle against irrational basis if the refusal to issue an identity card is due to the refusal to be fingerprinted. (ii) In compelling the taking of fingerprints, less intrusive means are available than non-issuance of an identity card. Besides, by conditioning the issuance of identity cards on the taking of fingerprints, the interests to be achieved and the damages to be caused to the people are not proportional. (iii) In respect of the issuance of an identity-verifying document, the State’s refusal to issue an identity card to certain classes of people on unconstitutional grounds is in violation of the constitutional principle of equal protection.

The agency concerned, namely, the Executive Yuan, has argued summarily that: (1) The petition at issue fails to meet the requirements for filing such a petition and thus should be dismissed because it does not involve the doubt about the meanings of constitutional provisions governing the functions and duties of the Legislators, nor does it concern any question as to the constitutionality of the application of any law. The Household Registration Act was passed and came into force in 1997, the implementation of which is the executive branch’s authority and does not involve the functions and duties of the Legislators, nor concerns any law to be applied by the Legislators. Thus, the petition at issue is not legal. (2) Article 8-II of the Household Registration Act is not inconsistent with the principles of proportionality, legal reservation and clarity and definiteness of law: (i) One’s fingerprints are a form of personal data protected under personal rights, the right of privacy, as well as the right to autonomous control of information. The State may collect and use such data by enacting a law if it is necessary to a compelling public interest and is consistent with the principle of proportionality. (ii) The legislative goal of Article 8 of the Household Registration Act is to establish fingerprinting data of all the people so as to “verify personal identity,” “to identify stray people, roadside patients, feebleminded senior citizens and unidentified corpses,” as well as to prevent false claim of another’s identity card. Thus, the legislative purpose is clearly related to a compelling public interest. (iii) Fingerprints are characterized by personal uniqueness and lifetime unchangeability. As such, they may effectively perform the function of identity verification and serve as adequate means to ensure the accuracy of ROC identity cards. Fingerprints are an economical, reliable and secure method of identifying a person, and are less intrusive but more effective when compared with other biometric means. The said legislation is capable of protecting the underprivileged, stabilizing social order and serving compelling legislative interests, which is not unproportionate when compared with the potential harm, if any. (iv) Article 8 of the Household Registration Act unambiguously requires that issuance of an ROC identity card be conditioned on the taking of fingerprints, which is consistent with the principle of legal reservation. Furthermore, the meaning of the said provision is not difficult to apprehend, is reasonably foreseeable for those who are subject to the regulation, and is subject to ex post facto judicial review. As for the transmission, utilization and management of the fingerprinting information, the applicable provisions of the Computer-Processed Personal Data Protection Act will supplement the aforesaid provision, thus making it in line with the principle of clarity and definiteness of law. (v) Public opinion is in favor of the taking of fingerprints: The Research, Development and Evaluation Commission, Executive Yuan, TVBS Poll Center, and the Ministry of the Interior conducted polls in 2001, 2002 and 2003, respectively, showing that about eighty percent (80%) of the people approved of being fingerprinted at the time of applying for an ROC identity card. Therefore, the taking of fingerprints is where the public opinion lies. Some countries require that all persons be fingerprinted, whereas others compel only aliens to be fingerprinted. Regardless, it is an international trend to make use of an individual’s biometric data to verify the true identity of him or her, as well as to reinforce the accuracy of identity verification. Forty member states of the International Civil Aviation Organization (ICAO), an agency of the United Nations, will install computer chips on their passports by the end of 2006, adding such biometric data as an individual’s fingerprints, palm prints, facial or iris. More and more countries and their people are willing to accept the taking of fingerprints for purposes of cross-checking, which is obviously an international tide and trend. (3) Article 8-III of the Household Registration Act is not unconstitutional: (i) The taking of fingerprints is a prerequisite for a national’s identification, which is as much a basis of verification as those identifying information appearing on an ROC identity card. The State shall issue an identity card by law if and when the legal requirements are met. On the other hand, if the basis of personal identification required of an identity card is lacking and thus is short of any legal requisite, no identity card shall be issued so that the provisions regarding fingerprinting can be duly enforced. The non-issuance of an ROC identity card is an effect incidental to the non-fulfillment of procedural requirements, rather than a punishment. The inconveniences, if any, caused to the people in their daily lives or exercise of their rights are the results of the people’s choice of not fulfilling their counter obligations at law, but not any infringement inflicted by the authorities on the people’s rights. In addition, fingerprints are one of the personal data that are protected under the Computer-Processed Personal Data Protection Act, whose process and utilization are regulated by applicable laws. As such, there is no violation of the principle of proportionality. (ii) An ROC identity card is an important proof of personal identity. In issuing an ROC identity card, the State should make sure that the individual claiming the identity card is the person identified on that particular card. And, because of the infallibility of fingerprints, they may help substantially in implementing identity verification and ensuring the accuracy of identification. Therefore, they are rationally related to each other.

Having taken into consideration the whole intentions of the arguments, this Court has delivered this Interpretation. The reasons are as follows:

As is clearly prescribed by Article 5-I (iii) of the Constitutional Interpretation Procedure Act, the Legislators may, by more than one third of the incumbent members of the Legislative Yuan, duly initiate a petition for constitutional interpretation in respect of the doubt as to the meanings of constitutional provisions governing their functions and duties, as well as of the question as to the constitutionality of the law to be applied by same. Therefore, if more than one third of the incumbent members of the Legislative Yuan, in exercising their authority of enacting a law, believe that the law reviewed and passed by the majority of their fellow Legislators and promulgated by the president may be unconstitutional, or if more than one third of the incumbent members of the Legislative Yuan, in exercising their authority of amending a law, believe that the existing and valid law may be unconstitutional but fail to so amend the law, they may duly initiate a petition for constitutional interpretation in respect of the constitutionality of the law because this Court opines that it is in line with the intent of the aforesaid Article 5-I (iii) of the Constitutional Interpretation Procedure Act.

The provisions at issue, i.e., Article 8-II and -III of the Household Registration Act, were added on May 21, 1997 when the said Act was amended and promulgated. The Executive Yuan has twice proposed amendments to Article 8 of the Household Registration Act before the Legislative Yuan in 2002 and 2005, respectively, suggesting deletion of Paragraphs II and III of the said article, on the ground that Article 8-II and -III of the Household Registration Act is likely to infringe upon fundamental rights of the people. A resolution passed by the Procedure Committee of the sixth Legislative Yuan at its first session proposed that the plenary session of the said Yuan pass the bill to the Home and Nations Committee and the Finance Committee for purposes of review. Following the advice of the Procedure Committee, a resolution was passed at the ninth meeting of the sixth Legislative Yuan’s first session (on April 22, 2005), passing the bill to the Home and Nations Committee and the Finance Committee for purposes of review. Nevertheless, at the tenth meeting (on May 3, 2005), the Chinese Nationalist Party’s Legislative Yuan Caucus proposed to submit the bill for reconsideration pursuant to the Regulation of the Legislative Yuan Proceedings on the grounds that members of the fifth Legislative Yuan from both the ruling party and the opposition parties unanimously resolved that Article 8 of the Household Registration Act would not be amended, that no consensus was reached between members of the ruling party and the opposition parties during the negotiations, that further dispute should be avoided before the overall replacement of ROC identity cards was to be implemented as of July 1, and that public funds would be squandered and social security jeopardized, etc. Consequently, the plenary session of the Legislative Yuan resolved that the bill for reconsideration be “discussed and reviewed on a date to be determined later.” At the fourteenth meeting (on May 31, 2005), the Chinese Nationalist Party’s Legislative Yuan Caucus once again proposed to submit the bill for reconsideration, resulting in another resolution to the effect that the bill for reconsideration be “discussed and reviewed on a date to be determined later.” As a result, eighty-five members of the Legislative Yuan, including Lai Ching-de, duly initiated a petition for constitutional interpretation because they were of the opinion that Article 8-II and -III of the Household Registration Act might be in violation of the Constitution. It should be noted that the bill for amendment to Article 8-II and -III of the Household Registration Act was submitted by the Procedure Committee of the Legislative Yuan to the plenary session of the said Yuan, which once resolved that the said bill be passed to the Home and Nations Committee and the Finance Committee for purposes of review, and twice resolved that the bill for reconsideration be discussed and reviewed on a date to be determined later. This matter should therefore be heard pursuant to Article 5-I (iii) of the Constitutional Interpretation Procedure Act because the Legislators who, in exercising their authority to amend a law, believed that the existing and valid law as passed by the Legislative Yuan might be unconstitutional but failed to amend the law, have duly initiated a petition with this Court for constitutional interpretation in respect of the constitutionality of the law.

To preserve human dignity and to respect free development of personality is the core value of the constitutional structure of free democracy. Although the right of privacy is not among those rights specifically enumerated in the Constitution, it should nonetheless be considered as an indispensable fundamental right and thus protected under Article 22 of the Constitution for purposes of preserving human dignity, individuality and moral integrity, as well as preventing invasions of personal privacy and maintaining self-control of personal information. (See J. Y. Interpretation No. 585) As far as the right of information privacy is concerned, which regards the self-control of personal information, it is intended to guarantee that the people have the right to decide whether or not to disclose their personal information, and, if so, to what extent, at what time, in what manner and to what people such information will be disclosed. It is also designed to guarantee that the people have the right to know and control how their personal information will be used, as well as the right to correct any inaccurate entries contained in their information.

Although the right of privacy is fashioned on the basis of preserving human dignity and respecting free development of personality, the mere restriction imposed on the said right does not necessarily lead to infringement upon human dignity. The Constitution does not make the right of information privacy absolute, which means that the State may forcibly acquire necessary personal information in light of public interest by enacting unambiguous laws as far as such laws do not transgress the scope contemplated by Article 23 of the Constitution. In deciding whether the law at issue satisfies the requirements of Article 23 of the Constitution, one should comprehensively take into consideration the public interests to be served by the State’s collection, use and disclosure of personal information, and the infringement upon the individual whose right of information privacy is invaded. In addition, different standards of scrutiny should be applied to different cases by looking to whether the personal information to be collected concerns confidential and sensitive matters or whether the information, though neither confidential nor sensitive, may nonetheless easily lead to a complete personal file when combined with other information. Furthermore, in order to ensure a person’s individuality and moral integrity, ands to protect one’s right of information privacy, the State shall also make sure that any and all personal information legitimately obtained by the State be reasonably used and properly maintained and secured. Thus, the purposes of the State’s collection of the information shall be specifically prescribed by law. After all, failing this, the people will be unable to learn in advance why their personal information will be collected and how the State will use such information so as to enable them to further determine that the competent authorities are collecting their personal information in a manner that is consistent with legally prescribed purposes and are using the same in a reasonable manner.

The 1st half of Article 7-I of the Household Registration Act provides, “For an area where household registration is completed, ROC identity cards and household registry shall be produced and issued.” The 1st half of Article 20-III of the Enforcement Rules of the Household Registration Act further provides, “An ROC identity card shall be carried on one’s person at all times.” Therefore, the issuance of an ROC identity card does not create any right-establishing effect, and the identity card is merely a valid identity-verifying document. However, there are tons of existing laws and regulations requiring that an ROC identity card or a copy thereof shall be presented at the time of exercising one’s rights or going through various administrative procedures. The following are some of such instances: On an election day, a voter must present his ROC identity card to receive the ballot (See Article 21 of the Public Officials Election and Recall Act and Article 14 of the Presidential and Vice Presidential Election and Recall Act). A proponent for a referendum must present a copy of his ROC identity card if he wishes to participate in such a proposal (See Article 10 of the Enforcement Rules of the Referendum Act). An applicant for an ROC passport must prepare his original ROC identity card and a copy thereof so as to receive the passport (See Article 8 of the Enforcement Rules of the Passport Act). A laborer must present a copy of his ROC identity card if he intends to apply for the payment of retirement pensions under the Labor Pension Act (See Article 37 of the Enforcement Rules of the Labor Pension Act). An examinee of various state-administered examinations must present his ROC identity card and admission pass so as to be admitted into the test site (See Article 3 of the Regulation Governing Examination Sites). When applying for the issuance of a professional license for business passenger vehicles, an applicant must have his ROC identity card ready for inspection (See Article 5 of the Regulation Governing the Supervision of Business Registration for Business Passenger Vehicle). In addition, more often than not, a person may be requested to produce his ROC identity card as proof of his identity in ordinary private activities. Such instances include the opening of a bank account and a company’s hiring of an employee. Therefore, an ROC identity card has become an important document for the people of this nation to identify a person’s identity in carrying on their personal and social life. The issuance or non-issuance of an ROC identity card will have a direct impact on the exercise of the people’s fundamental rights. Article 8-II of the Household Registration Act provide, “While applying for an ROC identity card pursuant to the preceding paragraph, the applicant shall be fingerprinted for record keeping; provided that no national who is under fourteen years of age will be fingerprinted until he or she reaches fourteen years of age, at which time he or she shall then be fingerprinted for record keeping.” Paragraph III of the same article reads, “No ROC identity card will be issued unless the applicant is fingerprinted pursuant to the preceding paragraph.” Refusal to issue an ROC identity card to one who fails to be fingerprinted according to the aforesaid provisions is no different from conditioning the issuance of an identity card upon compulsory fingerprinting for the purpose of record keeping.

Fingerprints are biological features of an individual’s person, which are characterized by personal uniqueness and lifetime unchangeability. As such, they will become a form of personal information that is highly capable of performing the function of identity verification once they are connected with one’s identity. Because fingerprints possess such trait as leaving traces at touching an object, they will be in a key position to opening the complete file of a person by means of cross-checking the fingerprints stored in the database. As fingerprints are of the aforesaid characteristics, they may very well be used to monitor an individual’s sensitive information if the State collects fingerprints and establishes databases by means of identity confirmation. If the State intends to engage in mass collection of the people’s fingerprinting information, such information collection should use less intrusive means substantially related to the achievement of a compelling public interest, which should also be clearly prescribed by law, so as to be consistent with the intent of Articles 22 and 23 of the Constitution.

It should be noted that the failure of the Household Registration Act to specify the purpose of compulsory fingerprinting and record keeping of such fingerprinting information is already inconsistent with the aforesaid constitutional intent to protect the people’s right of information privacy. Although it is described in the motivations and history of the newly added and amended Article 8-II and -III of the Household Registration Act that compulsory collection of all the people’s fingerprints and storing the same in a database may also serve the purpose of crime prevention, the said purpose, i.e., crime prevention, should not be covered by the legislative purpose of the Household Registration Act because the system of separation of household administration and police administration has been reinstated since the end of the Period of National Mobilization for Suppression of the Communist Rebellion (See J. Y. Interpretation No. 575). In addition, during the oral argument, the agency concerned, i.e., the Executive Yuan, also denied that the objective of taking all the people’s fingerprints is to prevent crimes. As such, crime prevention should not have been an objective of the law at issue. Even if, as claimed by the Executive Yuan during the oral argument, the compulsory taking of fingerprints and storing the same in a database as provided under the Article 8 of the Household Registration Act is aimed at improving the anti-counterfeit function of the new ROC identity card, preventing false claim or use of an identity card, and identifying stray imbeciles, roadside unconscious patients, psychotic invalids and unidentified corpses, which may pass the constitutional test as serving a significant public interest purpose, still it will fail to cross the threshold imposed by Article 23 of the Constitution, i.e., the principle of proportionality, when it compels the taking of fingerprints by providing that no ROC identity card will be issued unless an applicant is fingerprinted for record keeping. As far as the purposes of “improving the anti-counterfeit of ROC identity cards” and “prevention of false use of ROC identity cards” are concerned, the real-time verification for purposes of anti-counterfeit and prevention of false use as contemplated by the taking of all the people’s fingerprints will not be brought into full play unless verification equipment are universally used or other auxiliary measures are taken in addition to the storage of fingerprints onto an identity card either in a visible or an invisible way. Nevertheless, the aforesaid functions cannot be fully performed unless substantial amounts of costs and expenses are invested. Moreover, there may be a higher risk confronting information protection for lack of adequate precautionary measures. According to the Executive Yuan, there is no space designed to store the fingerprinting information on the new ROC identity card for now, nor is there any plan to provide fingerprinting database for daily real-time verification. Besides, as the competent authority has installed multiple anti-counterfeit measures onto the new identity card, it should be good enough to achieve the aforesaid objectives and thus unnecessary to compel an overall taking of fingerprints for purpose of record keeping if the expected functionalities of those measures, along with such existing visible data as checking of photographs, may be brought into full play. Furthermore, as for such purpose as the “prevention of false claim of ROC identity cards,” there is no way to evaluate the potential public interests and actual results that may be achieved due to the prevention of false claim of identity cards since the competent authority has failed to present any valid statistics in respect of falsely claimed identity cards. Additionally, in respect of the upcoming overall replacement of ROC identity cards, the household administration will inevitably depend on household information other than fingerprints of the people, as well as other reliable proof, to verify the identity of those to be fingerprinted. Therefore, since information other than fingerprints may be used to accurately identity a person, the collection of fingerprinting information and the objective of “prevention of false claim of ROC identity cards” are not closely related to each other. Finally, with respect to the purpose of “identifying stray imbeciles, roadside unconscious patients, psychotic invalids and unidentified corpses,” the agency concerned, i.e., the Executive Yuan, pointed out that there are currently a total of 2,796 stray and imbecile senior citizens taken in by social welfare institutions, and that roughly a total of 200 unidentified corpses are found each year. Despite the relatively few number of cases that demands special need for identity verification, it remains a significant public interest to identify those people. Nevertheless, for those nationals who are already unidentified or hard to identify, the compulsory taking and storage of their fingerprints at the time of replacing identity cards will not help with their identity verification. Instead, the said measures must be aimed at meeting the needs for identity verification in the future. However, even if the means is considered useful in achieving the aforesaid objectives in the future, still it fails to achieve balance of losses and gains and uses excessively unnecessary means, which is not in line with the principle of proportionality and thus infringes upon the people’s right of information privacy as protected under Article 22 of the Constitution, when it compels all those above fourteen to be fingerprinted in advance and subjects them to those potential risks that may arise from unclear and indefinite delegation of power and unwarranted disclosure of fingerprinting information simply because of the needs to verify the identity of a roadside unconscious patient, stray imbecile or unidentified corpse.

In light of the foregoing, the relevant provisions of Article 8-II and III of the Household Registration Act have made the refusal to issue an ROC identity card to one who fails to be fingerprinted according to said provisions no different from conditioning the issuance of an identity card upon compulsory fingerprinting for the purpose of record keeping. As such, the said provisions have infringed upon the people’s right of information privacy as protected under the Constitution. As for such purposes as improving the anti-counterfeit functionality, preventing false claim and use of ROC identity cards and identifying stray and imbecile people, roadside unconscious patients, psychotic invalids and unidentified corpses, they fail to meet the test under the principle of proportionality and thus are inconsistent with the intent of Articles 22 and 23 of the Constitution. Therefore, the said provisions shall no longer apply as of the date of this Interpretation. Needless to say, the replacement of ROC identity cards, which follows the remaining applicable provisions of the Household Registration Act, may still carry on.

Where it is necessary for the State to engage in mass collection and storage of the people’s fingerprints and set up databases to keep same for the purposes of any particular major public interest, it shall not only prescribe by law the scope and means of such collection, which shall be necessary and relevant to the achievement of the purposes of such major public interest, but also prohibit by law any use other than the statutory purposes. Having taken into account the contemporary development of relevant technologies, the competent authority shall engage in the aforesaid collection in a manner that is sufficient to ensure the accuracy and safety of the information, and take any and all necessary protective measures both organizationally and procedurally as to the files of fingerprints so collected so as to be in line with the constitutional intent to protect the people’s right of information privacy.

Despite the admissibility of other nations’ similar legislations and domestic popular polls as materials used in interpreting the Constitution, they cannot be used as the sole basis of determining the meanings and intents thereof. Moreover, it remains dubious whether an overall collection of the people’s fingerprinting information and preparation of digitalized files on such information has become a universally accepted practice in legislations. Furthermore, failing a careful comparison between our household administration system and its counterparts and an elaboration of other nations’ reasons and means of collecting the people’s fingerprinting information, foreign legislations may not be hastily transplanted to our soil. In addition, public opinion polls are simply indices of the popular thinking and preference as to a particular issue, the credibility of which is influenced by numerous factors such as the contents and methods of the inquiries, the agencies conducting the polls, and the purposes of the polls. It should be noted that the agency concerned for this matter has failed to offer any relevant questionnaires and materials although it claimed that the majority of our people are in favor of conditioning the issuance of an ROC identity card on the taking of one’s fingerprints. As such, we can hardly rely on the said claim as a basis for rendering an interpretation in respect of the matter at issue.

'Translated by Vincent C. Kuan.

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