NO.618  (釋字第 618 號 )

2006/11/3

Are the provisions of the first half of Article 21-I of the Act Governing Relations between People of the Taiwan Area and Mainland Area unconstitutional?

Article 7 of the Constitution provides that all citizens of the Republic of China, irrespective of sex, religion, race, class, or party affiliation, shall be equal before the law. Thus, the people, who shall have the right of taking public examinations and of holding public offices under Article 18 thereof, shall be equal under the law. The concept of “equal” as expressed thereunder shall refer to substantial equality. In light of the value system of the Constitution, the legislative branch may certainly consider the differences in the nature of the various matters subject to regulation and thus may create rational discriminatory treatment among the people accordingly. The foregoing has been made clear in the reasoning of J.Y. Interpretation No. 205 rendered by this Court. Furthermore, the restrictions imposed by law on the fundamental rights of the people based on any rational discriminatory treatment should also satisfy the test of the principle of proportionality under Article 23 of the Constitution. Article 10 of the Amendments to the Constitution as promulgated on May 1, 1991 (as amended and renumbered as Article 11 on July 21, 1997) provides, “The rights and obligations between the people of the Chinese mainland area and those of the free area, and the disposition of other related affairs, may be specified by sui generis law.” The Act Governing Relations between People of the Taiwan Area and Mainland Area (hereinafter referred to as the “Cross-Strait Relations Act”) is the sui generis law enacted to regulate the rights and obligations between the people of the Chinese mainland area and those of the free area, as well as the disposition of other related affairs, prior to the nation’s reunification.

The 1st half of Article 21-I of the Act Governing Relations between People of the Taiwan Area and Mainland Area as amended and promulgated on December 20, 2000, provides that no person from the Mainland Area who has been permitted to enter into the Taiwan Area may serve as a public functionary unless he or she has had a household registration in the Taiwan Area for at least ten years. The said provision is an extraordinary one with reasonable and justifiable objectives in that a public functionary, once appointed and employed by the State, shall be entrusted with official duties by the State under public law and owe a duty of loyalty to the State, that the public functionary shall not only obey the laws and orders but also take every action and adopt every policy possible that he or she considers is in the best interests of the State by keeping in mind the overall interests of the State since the exercise of his or her official duties will involve the public authorities of the State; and, further, that the security of the Taiwan Area, the welfare of the people of Taiwan, as well as the constitutional structure of a free democracy, must be ensured and preserved in light of the status quo of two separate and antagonistic entities which are on opposite sides of the strait and significant differences in essence between the two sides in respect of the political, economic and social systems. Given the fact that a person who came from the Mainland Area but has had a household registration in the Taiwan Area for less than ten years may not be as familiar with the constitutional structure of a free democracy as the Taiwanese people, it is not unreasonable to give discriminatory treatment to such a person and not to the Taiwanese people of the Taiwan Area with respect to the qualifications to serve as a governmental employee, which is not in conflict with the principle of equality as embodied in Article 7 of the Constitution, nor contrary to the intent of Article 10 of the Amendments to the Constitution. In addition, the said provision, which requires a person who originally came from the Mainland Area to have had a household registration for at least ten years before he or she may be eligible to hold a public office, is based on the concerns that those who originally came from the Mainland Area have a different view as to the constitutional structure of a free democracy and may need some time to adapt to and settle into the society of Taiwan. Moreover, it also may take a while for the Taiwanese people to place their trust in a person who came from the Mainland Area if and when he or she serves as a public functionary. Therefore, the ten-year period as specified by the provision at issue is nonetheless a necessary and reasonable means. The legislators, in making the relevant judgments in that regard, have not made any noticeable and significant oversights. Hence there is no violation of the principle of proportionality under Article 23 of the Constitution.

The subject matter of this petition for interpretation is the Cross-Strait Relations Act. The petition is for the 1st half of Article 21-I of the Act Governing Relations between People of the Taiwan Area and Mainland Area as amended and promulgated on December 20, 2000, to be declared unconstitutional. The 1st half of Article 21-I of said Act provides that no person from the Mainland Area who has been permitted to enter into the Taiwan Area may register as a candidate for any public office, serve in any military, governmental or educational organization or state enterprise, or organize any political party unless he or she has had a household registration in the Taiwan Area for at least ten years. It should be noted, however, that the outcome of the judgment giving rise to this matter merely concerns the part of the said provision in respect of governmental service, so this Court, having examined the intent of J.Y. Interpretations Nos. 371, 572 and 590, will limit its constitutional review of the matter to the said part of the provision without touching upon the other parts thereof.

Article 7 of the Constitution provides that all citizens of the Republic of China, irrespective of sex, religion, race, class, or party affiliation, shall be equal before the law. Thus, the people, who shall have the right of taking public examinations and of holding public offices under Article 18 thereof, shall be equal under the law. The concept of “equal” as expressed thereunder shall refer to substantial equality. In light of the value system of the Constitution, the legislative branch may certainly consider the differences in the nature of the various matters subject to regulation and thus may create rational discriminatory treatment among the people accordingly. The foregoing has been made clear in the reasoning of J.Y. Interpretation No. 205 rendered by this Court. Furthermore, the restrictions imposed by law on the fundamental rights of the people based on any rational discriminatory treatment should also satisfy the test of the principle of proportionality under Article 23 of the Constitution. Nevertheless, dealing with cross-strait affairs requires considerations and judgments on numerous factors relating to politics, economy and society. The constitutional interpreters, who are in charge of the judicial review of the law, should rightfully give due respect to the decisions made by the legislative branch, which represents the diverse opinions of the people, and have ample information on hand in that regard unless there has been any noticeable and significant oversight on the part of the legislative branch.

Article 10 of the Amendments to the Constitution as promulgated on May 1, 1991 (as amended and renumbered as Article 11 on July 21, 1997) provides, “The rights and obligations between the people of the Chinese mainland area and those of the free area, and the disposition of other related affairs may be specified by sui generis law.” The Act Governing Relations between People of the Taiwan Area and Mainland Area as promulgated on July 31, 1992, is the sui generis law enacted pursuant to the intent of the said article of the Amendments to the Constitution to regulate the rights and obligations between the people of the Chinese mainland area and those of the free area, as well as the disposition of other related affairs, prior to the nation’s reunification. The 1st half of Article 21-I of the Act Governing Relations between People of the Taiwan Area and Mainland Area as amended and promulgated on December 20, 2000, provides that no person from the Mainland Area who has been permitted to enter into the Taiwan Area may serve as a public functionary unless he or she has had a household registration in the Taiwan Area for at least ten years (as was provided in Article 21 of said Act as enacted and promulgated on July 31, 1992). The said provision is an extraordinary one with reasonable and justifiable objectives in that a public functionary, once appointed and employed by the State, shall be entrusted with official duties by the State under public law and shall owe a duty of loyalty to the State, that the public functionary shall not only obey the laws and orders but also take every action and adopt every policy possible that he or she considers is in the best interests of the State by keeping in mind the overall interests of the State since the exercise of his or her official duties will involve the public authorities of the State; and, further, that the security of the Taiwan Area, the welfare of the people of Taiwan, as well as the constitutional structure of a free democracy, must be ensured and preserved in light of the status quo of two separate and antagonistic entities which are on opposite sides of the strait and significant differences in essence between the two sides in respect of the political, economic and social systems. Given the fact that a person who came from the Mainland Area but has had a household registration in the Taiwan Area for less than ten years may not be as familiar with the constitutional structure of a free democracy as the Taiwanese people, it is not unreasonable to give discriminatory treatment to such a person and not to the Taiwanese people of the Taiwan Area with respect to the qualifications to serve as a governmental employee, which is not in conflict with the principle of equality as embodied in Article 7 of the Constitution, nor contrary to the intent of Article 10 of the Amendments to the Constitution. In addition, the said provision, which requires a person who originally came from the Mainland Area to have had a household registration for at least ten years before he or she may be eligible to hold a public office, is based on the concerns that those who originally came from the Mainland Area have a different view as to the constitutional structure of a free democracy and may need some time to adapt to and settle into the society of Taiwan. Moreover, it also may take a while for the Taiwanese people to place their trust in a person who came from the Mainland Area if and when he or she serves as a public functionary. If the review is conducted on a case-by-case basis, it would be difficult to examine an individual’s subjective intentions and character, as well as his or her level of identification with the preservation of the constitutional structure of a free democracy. Besides, it would also needlessly increase the administrative costs to a prohibitive level with hardly any hope of accuracy or fairness. Therefore, the ten-year period as specified by the provision at issue is nonetheless a necessary and reasonable means. In respect of such matters as the types of public functionaries and public offices that may affect the security of the Taiwan Area, the welfare of the people of Taiwan, as well as the constitutional structure of a free democracy, the constitutional interpreters should give due respect to the decisions made by the legislative body in that regard. Despite the failure of the law at issue to make any differential treatment and thus impose different restrictions, no noticeable or significant oversights have been made. Hence, there is no violation of the principle of proportionality under Article 23 of the Constitution.

Where a petition is made by a judge of any of the various levels of courts with this Court on the constitutionality of a law, J.Y. Interpretation No. 371 should govern. As for the formality of a petition, the said Interpretation has made it clear that Article 8-I of the Constitutional Interpretation Procedure Act should apply. This petition for constitutional interpretation has been filed pursuant to the intent of J.Y. Interpretation No. 371 (see II (iv) on p. 3 of the Petition). As such, Article 252 of the Administrative Litigation Act is not the law which is applicable to the original case for which the petitioning court rendered its judgment, nor is it the law to be applied by this Court in rendering an interpretation. Therefore, as far as the said provision is concerned, the petition for the constitutionality thereof should be dismissed based on the intent of J.Y. Interpretations Nos. 371, 572 and 590.

'Translated by Vincent C. Kuan.