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(釋字第 575 號 )      友善列印PRINT  
Interpretation
J.Y.
Interpretation
NO.575 
Date 2004/4/2
Issue Does the Household and Police Separation Implementation Plan provide sufficient mitigation for police officers, who served in household registration affairs but did not possess the qualifications for public functionary, to return to their original posts or remain in office after the rebellion-suppression period has ended? Does the remuneration and ranking system under the Act Governing the Management of Police Officers conflict with the constitutional principle of equal rights?
Holding   The people have the right to serve in public office under Article 18 of the Constitution, the main purpose of which is to ensure that the people who are engaged in official affairs, pursuant to the laws and ordinances, shall, subsequently, be entitled to the right to secure status, request for remuneration and retirement pension, etc. If the change of organization, dissolution, or change of subordinate institutions greatly restricts the constitutionally protected right of public functionaries to serve in public office, the government shall formulate appropriate transitional provisions or other mitigating measures to give both proper consideration.

  Article 7, Paragraph 2, of the Household Registration Act amended and declared on July 17, 1973, states: “During the Period of National Mobilization for Suppression of the Communist Rebellion, the Household Registration Office shall be under the jurisdiction of executive-governed-municipality and -county police administrations after the approval and determination of the Executive Yuan.” Because this period had ended, Article 7 of the Household Registration Act, amended and declared on June 29, 1992, deleted the original Paragraph 2, and amended Paragraph 1 and Article 3 of its Enforcement Rules. Returning to the system of separation of household and police coincides with the adjustment of institutional organization as the constitutional order normalizes. After the household registration unit returned to the civil administration system, the appointment of household registry functionaries followed the Public Functionaries Appointment Act, the personnel establishment chart of each household registration unit, and the laws and regulations related to personnel. The police officers, who had originally served in household registration affairs but did not possess the qualifications for public functionary, were not allowed to remain in office. Obviously, the right of such officials to serve in public office was greatly restricted. To seek mitigation, the Ministry of the Interior issued Tai-Nei-Hu-Tze No. 8103536 on June 10, 1992, and applied the “Household and Police Separation Implementation Plan” on July 1, 1992. According to this plan, the police officers who had originally served in household registration affairs, whether they had remained at the original post or returned to the police posts within five years, and were no longer restricted by exam qualifications, could transfer and become ordinary public functionaries. Such plan has sufficiently considered the willingness and rights of the people involved and adjusted the time period necessary for a new working environment; thus, the government has chosen a method that least constrains the rights of associated public functionaries and does not result in excessive waste of administrative costs to achieve the separation of household and police. Although not all of the expectations of the people applying for post openings were satisfied, compared to the significance and necessity of returning to the system of separation of household and police, such expectations were only slightly affected. The result of respecting them did not exceed the scope of possible expectations, which was consistent with the request of the proportionality principle of a constitutional state (Rechtsstaat).

  The Regulations associated with the aforesaid Implementation Plan, which involve the rights of the people, were not passed into law, and therefore, were not appropriate. However, the content did not restrict the rights of the people. Thus, the Implementation Plan does not conflict with the principle of reservation of law (Gesetzesvorbehalt) under Article 23 of the Constitution. It must be pointed out that if those transitional provisions have the effect of abolishing or restricting the law, new statutes shall be passed, abiding by the principle of separation of powers under a constitutional state (Rechtsstaat). The Act Governing the Management of Police Officers was amended and declared on November 21, 1983. The attached chart under its Article 22, Paragraph 2, annotated that police officers, transferring to posts that are not designated for police officers, shall convert to the corresponding remuneration rank at the new post according to the original rank, subject to the maximum annual remuneration; if the remuneration exceeds the maximum, the amount of remuneration in excess will be withheld. Because officials of different systems employ different personnel ordinances, it is necessary to reassess and formulate special regulations for remuneration and ranking. This is an essential restriction to protect the well-being and overall balance of the public functionary personnel system, which does not conflict with the implication of equal rights protected under the Constitution.
Reasoning   The people have the right to serve in public office under Article 18 of the Constitution, whose main purpose is to ensure that the people who are engaged in official affairs, pursuant to the laws and ordinances, shall, subsequently, be entitled to the right to secure status, request for remuneration and retirement pension, etc. If the constitutionally protected right of public functionaries to serve in public offices is greatly restricted by the change of organization, dissolution, or change of subordinate institutions, the government shall formulate appropriate transitional provisions or other mitigating measures to protect their rights.

  Article 7, Paragraph 2, of the Household Registration Law amended and declared on July 17, 1973 states: “During the Period of National Mobilization for Suppression of the Communist Rebellion, the Household Registration Office shall be under the jurisdiction of executive-governed-municipality and -county police institutions after the approval and determination of the Executive Yuan.” Thus, subject to the Household-Police Alliance Implementation Plan, the Regulations to Improve Household Registration in the Taiwan Area during the Rebellion-Suppression Period and other rules, police officers may serve in household registration affairs under the joint household-police system, which is in accordance with the law. After this period had ended, on June 29, 1992, Article 7 of the Household Registration Law deleted the original Paragraph 2, and amended Paragraph 1 and Article 3 of its Enforcement Rules. Returning to the system of separation of household and police coincides with the adjustment of institutional organization as the constitutional order normalizes.

  After the household registration unit has returned to the civil administration system, the appointment of household registry functionaries shall follow the Public Functionaries Appointment Act, the personnel establishment chart of each household registration unit, and the laws and regulations related to personnel. The police officers, who had originally served in household registration affairs but did not possess the qualifications for public functionary, without satisfying the appointment qualifications and the regulations for the personnel system, unless otherwise permitted by other ordinances, shall not remain in office. Such a result was due to the return of the institutional organization to the civil administration and the original personnel system; however, it has already greatly affected the rights of such officials to serve in public office. The government has the duty to establish corresponding placement for related personnel; for example, to formulate transitional provisions or other mitigating measures to suitably decrease the impact of structural changes on the rights of the people.Based on the consideration of protection of the people’s rights, the Ministry of the Interior issued Tai-Nei-Hu-Tze No. 8103536 on June 10, 1992, and applied the “Household and Police Separation Implementation Plan” on July 1, 1992. Article 4.2 states that police officers, who did not satisfy the appointment qualifications and the regulations of the personnel system, after the change of affairs, may remain in the Household Registration Office with the original appointment qualifications, and according to their preference, return to their previous police positions. Such Article gives these officials the opportunity to carefully assess whether to apply for service in public offices in the future. Tai-Nei-Ching-Tze No. 8180130, issued by the Ministry of the Interior, June 24, 1992, declared the “Outline for Officials who Possess Police Appointment Qualifications and Wish to Return to Their Police Posts in the Transfer of the Household Registration Unit after the Household and Police Separation.” If officials have not requested to return to their previous positions within five years and still perform such duties, subject to the aforesaid provision, they may be allowed to become ordinary public functionaries and remain in office. The five-year limitation, subject to the consideration of administrative effect and the need of duty allocation, is to verify the openings of each institution during a certain period of time in order to achieve personnel stability. Consequently, the Household and Police Separation Implementation Plan has sufficiently considered the willingness and rights of the people involved, adjusted the time period necessary for a new working environment, so that after the change of subordinate institutions, the restrictions on the rights of the original officials would be minimized. Therefore, the government has chosen a method that least constrains the rights of associated public functionaries and does not result in the excessive waste of administrative costs to achieve the separation of household and police. Following the principles of a legal state and appropriately allocating police and normal administrative duties is a significant and necessary public welfare of normalizing the constitutional system. Although not all the expectations of the people applying for post openings were satisfied, they were only slightly affected; the result of respecting them did not exceed the scope of possible expectations, which was consistent with the request of the proportionality principle of a constitutional state (Rechtsstaat).

  The regulations associated with the aforesaid Implementation Plan, which involve the freedoms and rights of the people, were not passed into law, and therefore, were not appropriate. However, these actions were taken because the agency-in-charge did not formulate transitional provisions or other mitigating measures when the Legislative Yuan was amending the Household Registration Act during the period of constitutional transformation. Because the content did not restrict the freedoms and rights of the people, the Implementation Plan did not conflict with the principle of reservation of law (Gesetzesvorbehalt) under Article 23 of the Constitution. Since the Period of National Mobilization in Suppression of the Communist Rebellion has ended and the constitutional order has normalized, the aforesaid situation no longer exists. It must be pointed out that if transitional provisions have the effect of abolishing or restricting the law, and for an administrative agency whose organization and personnel are not within the scope of inherent jurisdiction, new statutes shall be passed or legally authorized associated institutions shall formulate appropriate regulations, abiding by the principle of separation of powers under a constitutional state (Rechtsstaat).

  The Act Governing the Management of Police Officers was amended and declared on November 21, 1983. Its attached chart (The Remuneration Chart of Police Officers) of Article 22, Paragraph 2, annotates: “According to this chart, after police officers are ranked, transferring to posts that are not designated for police officers, they shall adhere to the remuneration system applicable to the posts to which they transfer. Following the original remuneration rank, the police officer shall convert to the corresponding ranking at the new post, subject to the maximum annual remuneration; if the remuneration exceeds the maximum, the exceeding portion would be withheld.” Officials of different systems employ different appointment, remuneration, examination, and inspection regulations. When police officers transfer to posts not designated for police officers, special regulations for remuneration and ranking shall be reassessed and formulated to guarantee the fair treatment of public functionaries in the same system and the remuneration benefits of legally ranked police officers. Such a provision, which does not create unequal treatment based on whether the transfer was voluntary in order to avoid the difficulty in executing a personnel transfer of proper cause, is a necessary restriction to protect the well-being and overall balance of the public functionary personnel system. Such a method is appropriate and does not conflict with the implication of equal rights protected under Article 7 of the Constitution.

'Translated by Wei-Feng Huang of THY Taiwan International Law Offices.
 

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