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(釋字第 261 號 )      友善列印PRINT  
Interpretation
J.Y.
Interpretation
NO.261 
Date 1990/6/21
Issue Should the first-term national representatives be allowed to exercise their powers indefinitely without periodical reelection?
Holding   The terms of office of the national representatives are expressly provided in the Constitution. Since the first-term national representatives were elected and took office, our nation has suffered severe calamities. As a result, reelection of the national representatives has been infeasible and all of the first-term national representatives have continued to exercise their powers. Such results were necessary for the maintenance of our constitutional system. However, periodical reelection of representatives is crucial for reflection of the will of the people and for implementation of constitutional democracy. Neither J.Y. Interpretation No. 31, nor Article 28, Paragraph 2, of the Constitution, nor Paragraph 6, Subparagraphs 2 and 3, of the Temporary Provisions Effective During the Period of National Mobilization for the Suppression of the Communist Rebellion were intended to allow the first-term national representatives to continue exercising their powers indefinitely. None of these provisions were intended to change their terms of office. Nor did they prohibit the election of the next-term national representatives from being held. In fact, since 1969, the Central Government has been holding regular elections of the national representatives in the Free Area, in order to reinforce our national representative bodies incrementally. To cope with the present situations, those first-term national representatives who have not been reelected on a periodical basis shall cease the exercise of their powers no later than December 31, 1991. Among them, those who have been de facto incapable of exercising or constantly failed to exercise their powers shall be immediately dismissed, after thorough investigation, from their offices. The Central Government is further mandated to hold, in due course, a nationwide second-term election of the national representatives, in accordance with the spirit of the Constitution, the essence of this Interpretation and the relevant regulations, so that the constitutional system will function properly.
Reasoning   When the Legislative Yuan exercised its budgetary powers, it cast doubt on the constitutional application of J.Y. Interpretation No. 31; Article 28, Paragraph 2, of the Constitution; and Paragraph 6, Subparagraphs 2 and 3, of the Temporary Provisions Effective During the Period of National Mobilization for the Suppression of the Communist Rebellion. It therefore petitioned for interpretation. In accordance with the resolution of the 118th Meeting of the Council of Grand Justices of the Judicial Yuan and Article 4, Paragraph 1, Subparagraph 1, of the Act of the Constitutional Interpretation Procedure of the Judicial Yuan, this petition is admitted.

  The Constitution provides specific terms of office for all national representatives: six years for the National Assembly Delegates, three years for the Legislators and six years for the Members of the Control Yuan, respectively. Such terms are expressly provided for in Article 28, Paragraph 1, and Articles 65 and 93 of the Constitution. After the current Constitution took effect, our nation suffered severe calamities. Upon expiration of the first term of the Legislators and Members of the Control Yuan, it was de facto impossible to hold elections of the second-term representatives in accordance with the laws. In order to prevent the Five-Yuans system as established by the Constitution from being weakened, J.Y. Interpretation No. 31 therefore declared that “before the second-term representatives are elected and convene in accordance with the laws, all of the first-term representatives of both the Legislative and Control Yuans shall continue to exercise their respective powers.” As to the first-term National Assembly Delegates, they were allowed to keep exercising their powers after their first term expired, because Article 28, Paragraph 2, of the Constitution provides that “The term of office of the Delegates to each National Assembly term shall cease on the date upon which the next National Assembly term convenes.”Furthermore, on March 23, 1972, the Temporary Provisions Effective During the Period of National Mobilization for the Suppression of the Communist Rebellion were amended to include the following provisions: “The first-term national representatives were elected by the people of the entire nation and have been exercising their powers pursuant to the laws. Those elected through the by-elections shall have the same status” (Paragraph 6, Subparagraph 2) and “Those national representatives elected through the elections for additional members, together with the first-term national representatives, shall exercise their powers pursuant to the laws” (Paragraph 6, Subparagraph 3).

  However, periodical election of representatives is an essential avenue for reflection of the will of the people and implementation of constitutional democracy. That the abovementioned national representatives were allowed to continue the exercise of their powers was necessary in order to deal with the then-existing situations and maintain the constitutional system. Since publication of the abovementioned Interpretation on January 29, 1954, the first-term national representatives have been exercising their powers for more than three decades. Nevertheless, the above-mentioned Interpretation was not intended to permit the indefinite exercise of powers by the first-term Legislators and Members of the Control Yuan, or to change their respective terms. Furthermore, Article 28, Paragraph 1, of the Constitution expressly provides “The National Assembly Delegates shall be elected every six years.” Obviously, the intention of Paragraph 2 of this Article is to avoid any time gap between elections in the course of the National Assembly’s exercise of their powers. It is not intended to extend the term of office of the National Assembly Delegates indefinitely.

  Furthermore, the abovementioned provisions regarding the first-term national representatives’ exercise of powers pursuant to the laws as provided for in Paragraph 6, Subparagraphs 2 and 3, of the Temporary Provisions Effective During the Period of National Mobilization for the Suppression of the Communist Rebellion were amended for those national representatives elected through both the by-elections and elections for additional members. In the spirit of the abovementioned J.Y. Interpretation No. 31, the intention of these two Subparagraphs was not to permit the indefinite exercise of powers by those national representatives who were not reelected periodically. Nor did they prohibit the government from holding the next-term elections of the national representatives. In fact, since 1969, the Central Government has been holding regular elections of the national representatives in the Free Area, in order to reinforce the national legislative bodies incrementally. To cope with the present situation, those first-term national representatives who have not been reelected on a periodical basis shall cease the exercise of their powers no later than December 31, 1991. Among them, those who have been de facto incapable of exercising or constantly failed to exercise their powers shall be immediately dismissed, after thorough investigation, from their offices.

  As stated above, those national representatives who have not been reelected on a regular basis shall cease the exercise of their powers. However, those provisions regarding election of the national representatives as provided for in Articles 26, 64 and 91 of the Constitution are still not entirely applicable in practice at the present time. Given such circumstances, the Central Government shall make an appropriate plan, in accordance with the spirit of the Constitution, the essence of this Interpretation and the relevant regulations, to hold in due course the next election of the national representatives, including a certain number of representatives-at-large, so that the constitutional system will continue to function. It should be noted here that those current national representatives elected through the elections for additional members shall continue to exercise their powers until the end of their term.

Translator by Professor Jau-Yuan HWANG.
Opinion Chinese only
 

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