By the time this petition was filed by the former Taiwan Provincial Council and after this Yuan reviewed and placed the petition on the agenda for further deliberation, Article 9 of the Amendments to the Constitution had already been amended (July 21, 1997); and the Local Government Act was enacted and promulgated on January 25, 1999. As such, Self-Governance Acts of Provinces, Special Municipalities, Counties and Cities had thus been abolished.
This interpretation is thus rendered in accordance with the current laws.Local self-government is a system guaranteed by the Constitution. Except for those powers of the central and local governments explicitly set forth in Chapter 10 of the Constitution, matters not enumerated in said Chapter, pursuant to Article 111 of the Constitution, shall fall within the jurisdiction of the Central Government, if they are national in nature; of the county, if they concern the county in nature. The intent of the Constitution is to endue the local self-governing body with the self-governing and sovereign powers to implement the self-government matters by its own will and under its own authority. The local self-governing body may, during the course of executing specific matters, possess separate powers decentralized from and by the central government and as such, it may cooperate with the central government in implementing specific matters, which will result in the local self-government’s jointly sharing certain powers with the central government and would mean that, based on its relation the with central government, its respective power would arise from the vertical separation of powers so as to meet the local requirements. In addition to the “County (Hsien) Self-Government” stipulated in Section 2, Chapter 11, of the Constitution, Articles 118, 121 and 128 of the Constitution also provide for self-government for special municipalities, counties and cities, respectively, with the intent to realize the concept of local residents’ self-government and in order to have local constituents directly involved in local affairs and public policy-making.
Article 9 of the Amendments to the Constitution is in line with the abovementioned intent and the Local Government Act is, thus, enacted and promulgated.Based on the concept of local residents’ self-government and the function of the vertical separation of powers, a local self-governing body that has an established local administrative body as well as a local legislative body, shall have both its administrative body’s chiefs and its legislative body’s representatives elected and/or recalled in accordance with the law by the constituents of the local self-governing body (See Articles 123, 124 and 126 of the Constitution, Articles 33 and 55 of the Local Government Act, and Articles 1, 2 and 69 of the Public Officials Election and Recall Act).The local self-governing body shall implement not only self-government matters but also the matters commissioned by higher government agencies. The people of the local self-government shall, in accordance with law, exercise the rights of initiative and referendum in matters within the scope of local self-government (See Article 123 of the Constitution and Article 14, Paragraph 2 of Article 16 and Section 2, Chapter 3, of the Local Government Act). The legislative body of local self-government shall exercise its powers by reviewing the total budget submitted by the local self-government’s administrative body. The chief of the local self-government’s administrative body shall present his or her administrative report during the regular sessions of the councils of the local legislative body and the councils of the local legislative body shall have the right to interpellate the chief or heads of departments of the local self-government. In the event of the need to clarify specific issues, the heads of relevant agencies or departments of the local self-government apart from the chief may be invited to attend and explain issues during meetings of the local legislative body (See Articles 35 to 37, Article 40, Articles 41, 48 and 49 of the Local Government Act). This is based on the principles of democracy and accountability with respect to the relationship in view of the principle of checks and balances concerning responsibility and the powers between the local administrative and legislative bodies. The Central Government or any other higher agencies may only supervise the local self-governing body to determine if it, in implementing local self-government matters or the matters commissioned by higher government agencies, acts legally and/or appropriately as per its nature (See Chapter 4 of the same law). Consequently, within the purview of the powers guaranteed by the Constitution and laws, the local self-governing body is entitled to have self-governing and sovereign powers and any of the government agencies shall therefore respect such powers.
The Legislative Yuan may, in accordance with Article 67 of the Constitution, set up various committees and then convene meetings at which the government officials and private parties concerned may be invited to be present and answer questions. Since the Executive Yuan is accountable to the Legislative Yuan under the Constitution, the heads of ministries and the subordinates thereof, except for those who are mandated by law to exercise their functions independently and are free from external check, are under the obligation to be present and give answers when invited to meetings by those various committees according to Article 67, Paragraph 2, of the Constitution, which was interpreted by this Yuan before in Interpretation No. 461. However, in consideration of the separation of powers and the equal division of powers between the central and local governments provided in the Constitution, such obligation shall be subject to some appropriate restrictions in the event that officials of the local self-government are to be invited to be present at the meetings of the Legislative Yuan. Since the local self-government is a system guaranteed by the Constitution, it therefore possesses certain levels of self-governing and sovereign powers and it also shares with the central government to a certain extent the power to exercise rights accordingly. Additionally, given that both the central government and the local self-government have a legislative body under different levels of systems, unless otherwise required by law, officials of the local self-government are, however, not obligated to be present at the Legislative Yuan’s meetings, provided, however, that such officials may nevertheless, at their own discretion, determine if it is necessary to attend the meetings. Moreover, the central government may provide to local self-governing bodies, if their financial conditions so require, appropriate subsidy (See Article 147 of the Constitution; Article 69 of the Local Government Act and Article 30 of the Act Governing the Allocation of Government Revenues and Expenditures) so as to enable local self-governing bodies to meet their basic financial requirements, to ensure the stability or livelihood of the people nationwide and to attain a balanced nationwide economic development. Under the circumstances, the Legislative Yuan may not reduce or delete the subsidy, even the appropriation of the subsidy is pending, granted by the central government to the local self-governing body simply because officials of the local self-governing body refuse to be present at the Legislative Yuan’s meetings. Consequently, the local self-government system will be ensured, and the equal division of powers between the central and local government provided in the Constitution will be conformed to.
*Translated by Wei-Feng Huang of THY Taiwan International Law Offices.