Article 23 of the Constitution unambiguously provides that the freedoms and rights of the people shall only be restricted by law. The term “law” as used therein shall mean any legislative bill that shall have been passed by the Legislative Yuan and promulgated by the President of the Republic. Article 2 of the existing Standard Act for the Law and Rules provides, “A law may be denominated as an act, a lu, a statute or a general act.” Article 5, Subparagraph 2, thereof provides that such matters as concern the rights and obligations of the people shall be legislated and Article 6 thereof further provides that “those matters that should be prescribed by law may not be governed by administrative regulation.” Judging from the foregoing provisions, the principle of reservation of law (Gesetzesvorbehalt) must be followed in the legal system during the constitutional period when it comes to matters regarding the rights and obligations of the people. Nevertheless, one of the foregoing denominations of “law,” namely, statute, though accorded the status of a law nowadays, was not so during the early era of the political tutelage. Article 1 of the former Standard Act for the Law and Rules provided, “Any legislative bill passed by the Legislative Yuan through the third reading procedure and promulgated by the National Government shall be denominated as an act.” Article 2 thereof said, “The following matters shall be made in the form of a legislative bill to be passed by the Legislative Yuan through the third reading procedure: (i) any matter concerning the modification or repeal of any existing law; (ii) any matter that should be prescribed by law in accordance with an existing law; and (iii) any other matter concerning the organization of various agencies of the State or involving the rights and obligations of the people, in respect of which the Legislative Yuan deems it necessary to prescribe by law.” Article 3 thereof further provided, “The enactment of any statute, by-law or regulation shall be made pursuant to law.” Article 4 thereof then said, “Any statute, by-law or regulation shall not be contrary to or in conflict with law.” And, finally, Article 5 thereof provided, “Those matters that should be prescribed by law shall not be prescribed by a statute, by-law or regulation.” In light of the aforesaid provisions, it may be inferred that the requirements of the principles of superiority, as well as reservation, of law had been implied in the legal system at that time, but that a statute remained a regulation (and had not achieved the status of a law until Article 3 of the former Standard Act for the Law and Rules, as amended and promulgated on June 4, 1943, provided, “A law may be denominated as an act or a statute based on the nature of the matters prescribed thereby.”) Nevertheless, the law-making body at the time, i.e., the Legislative Yuan, was subordinate to the National Government and not comprised of members directly elected by the people. A legislative bill passed by the Legislative Yuan had to be resolved by the State Council before it could be promulgated. (See Articles 13 and 31 of the Organic Act of the National Government of the Republic of China as promulgated on October 8, 1928.) Furthermore, under Article 2, Subparagraph 3, of the former Standard Act for the Law and Rules, it would be so interpreted as to lead to the conclusion that a matter involving the rights and obligations of the people, if not prescribed by law by the Legislative Yuan, could be regulated by the National Government or any of the five Yuans thereunder or various departments or agencies of the Executive Yuan in the form of such order or rule as a statute, by-law or regulation as announced or issued by the same. (See Articles 13, 14 and 23 of the Organic Act of the National Government of the Republic of China as promulgated on October 8, 1928.) Therefore, the denotation of the principle of reservation of law (Gesetzesvorbehalt) and the scope of application of such principle were not exactly the same as what we have known since the Constitution was put into effect.
The Act on the Management of Temples, drawn up by the Ministry of the Interior, was originally issued by the National Government on January 25, 1929. However, troubles and disturbances erupted after the implementation thereof in various provinces in the Chinese mainland. As a result, the Ministry of the Interior submitted said Act to the Executive Yuan, which, in turn, submitted the same to the National Government. On May 25 of that same year, the National Government sent said Act to the Legislative Yuan with the order for the latter to give it a full review. After a discussion thereof by the Legislative Yuan on its 27th Meeting held that same year, the Legislative Yuan considered said Act difficult to carry out and, thus, drafted a bill of the Act of the Supervision of Temples, which was presented at the 63rd Meeting of said Yuan on November 30 of the same year for article-by-article discussion and was then passed without going through the third reading procedure (See Articles 10 and 11 of the Rules Governing the Meetings and Discussions of the Legislative Yuan as promulgated on November 13, 1928) before being submitted to the National Government for promulgation and implementation on December 7, 1929. This was the Act of the Supervision of Temples at issue today. Subsequently, despite the promulgation of the preparatory procedure for the implementation of the Constitution on January 1, 1947, the Act at issue remained unchanged or un-repealed and continues to be applied today. Moreover, after the implementation of the Constitution, the Legislative Yuan Committee on the Arrangement of Laws and Regulations categorized and compiled a “Preliminary Catalogue of Existing Laws of the Republic of China” and submitted the same to relevant committees of the Legislative Yuan for the latter’s review. Whereupon the first Legislative Yuan resolved on January 7, 1955, at its 31st Meeting of the 14th Session that said Act be compiled into the “Catalogue of Existing Laws of the Republic of China,” thus recognizing it as an existing and effective law. (See LEGISLATIVE YUAN GAZETTE, 14th Sess., 8th Vol., February 16, 1955, at 54-55, 74; LEGISLATIVE YUAN COMMITTEE ON the ARRANGEMENT OF LAWS AND REGULATIONS, PRELIMINARY CATALOGUE OF EXISTING LAWS OF THE REPUBLIC OF CHINA, as of May 8, 1954, at 1, 27; see also HSIEH ZHEN-MIN, LEGISLATIVE HISTORY OF THE REPUBLIC OF CHINA at 620-622 (Chang Zhi-Ben, Ed. , Zheng Chung Bookstore (January 1948, Hu-1st ed.).) Besides, this Yuan has repeatedly reviewed it in various cases on record. (See J.Y. Interpretations Nos. 65 and 200.) Thus, it should be deemed to have achieved the status and force and effect of a law. The provisions of the aforesaid Act that involve the rights and obligations of the people, therefore, are not contrary to the principle of reservation of law(Gesetzesvorbehalt) as applied subsequent to the implementation of the Constitution.
Article 13 of the Constitution provides for the people’s freedom of religious belief. This should refer to the people’s freedom to—or not to—believe in any religion, as well as the freedom to—or not to—participate in any religious activities. It also means that the State shall not encourage or forbid any specific religion, nor shall it give favorable or unfavorable treatment to any people having specific beliefs. The scope of such protection extends to the freedom of inner belief, freedom of religious activity, and freedom of religious association. (See J.Y. Interpretation No. 490.) It is impossible to completely separate the religious activities engaged in and religious association attended by the people from the heartfelt, devout religious convictions held by the same. In respect of a religious association established and attended by the people for the purpose of observing their religious beliefs, autonomy should be given to it as far as its internal organization and structure, personnel and financial administration are concerned. Any religious regulations, if not made to maintain the freedom of religion or any significant public interests, or if not made to the minimum extent necessary, should be deemed to be in conflict with the constitutional intent to protect the people’s freedom of belief. Article 15 of the Constitution provides that the people’s property right shall be guaranteed. The intent thereof is to ensure that an individual may freely exercise the rights and powers to use, derive benefits from, and dispose of any and all of his properties depending upon the existing status of such properties, and that such properties will not be subject to intrusion by a third party, public or private. The property of a temple, therefore, should also be subject to the protection of the Constitution under the provisions regarding the property right.
The freedom of religious association should extend to such matters as the internal organization and structure of a temple, its participation (or non-participation) in another religious civil organization (religious society) as an institutional member, the internal privity between the temple and such other religious civil organization, as well as the management and disposition of the property of the temple. Article 8 of the Act of the Supervision of Temples provides, “The real properties or ritual objects of a temple shall not be disposed of or modified unless made by means of a resolution reached by the religious society to which such temple belongs and subject to approval by the authorities-in-charge.” The said provision is designed to protect the properties of any kind of temple not listed in Article 3 of said Act, preventing the real properties and ritual objects from improper disposition or modification that may restrict the spread and subsistence of the beliefs of the temple. No doubt, the foregoing are legitimate grounds for such provision. As far as the consent of the religious society to which the temple belongs is concerned, however, it fails to give considerations to the autonomy of a religious organization, differences in internal management mechanisms among such organizations, as well as their needs to manage properties for purposes of missionary work or preaching while putting restraints on the autonomy and property right of such religious organizations. As a result, more than necessary restrictions have been placed upon religious activities. Furthermore, in respect of the approval by the authorities-in-charge, the procedure and requirements for relevant applications are wanting, not only rendering it difficult for the subjects of such provisions to foresee and comprehend, but also making it impossible for such procedure and requirements to be confirmed through judicial review, which is against the principle of clarity of law (See J.Y. Interpretations Nos. 445 and 491), not to mention whether it is indeed necessary to adopt prior approval by a government agency as a regulatory means in this regard. The means adopted thereby also cannot be said to have satisfied the requirements of the principle of least intrusion, thus conflicting with the provisions of Article 23 of the Constitution.
The constitutional guarantee of the people’s freedom of religious belief is intended to preserve self-development and self-realization of the human spirits of the people, as well as to make social and cultural diversity a tangible reality. Therefore, as stated earlier, the State shall discreetly abide by the principles of neutrality and tolerance by not encouraging or forbidding any specific religion, nor giving favorable or unfavorable treatment to any people having specific beliefs. Moreover, Article 7 of the Constitution says, “All citizens of the Republic of China, irrespective of sex, religion, race, class, or party affiliation, shall be equal under the law.” Therefore, if the State forbids a specific religion or gives it unfavorable treatment, it goes counter to the principles of religious neutrality and religious equality. Under Article 3 of the Act of the Supervision of Temples, the Act does not apply to any temple managed by a government agency or local public group, or established as a private entity. In contrast, only those temples that are established by means of funds raised by the followers (referred to as “fund-supported temples” in practice) are subject to the provisions of said Act. Differential treatment is given based on such criterion as the source of properties of a temple. As such, no discriminatory treatment as to various religious beliefs is involved. In light of the legislative objectives of the aforesaid provisions of said Act, namely, protecting properties of a temple and preventing abusive activities, such discriminatory treatment should be considered as reasonable measures adopted after having taken into account the nature of the subjects of such regulation. No requirements of substantive equality can be said to have been breached. However, the provisions of Article 8 of said Act merely apply to some religions like Buddhism and Taoism but do not impose identical restrictions on other religions by operation of Articles 1 and 2, Paragraph 1, thereof, which provide, respectively, that any religious structure over which a Buddhist monk or a Taoist priest presides, irrespective of the name of such structure, shall be a temple for the purpose of said Act, and that, unless otherwise provided by law, a temple, as well as its properties and ritual objects, shall be supervised pursuant to said Act. Consequently, the principles of religious neutrality and religious equality as required by Articles 13 and 7 of the Constitution are violated.
To sum up, the provisions of Articles 8 and 2, Paragraph 1, of the Act of the Supervision of Temples are contrary to Articles 7, 13, 15 and 23 of the Constitution. In view of the fact that the foregoing provisions of said Act are the primary norms on the supervision of the disposition of properties of the aforesaid temples, reasonable time will be required to respond to such change of supervisory systems. Therefore, from the date of this Interpretation, Article 8 and Article 2, Paragraph 1, of said Act shall become void within two years.
*Translated by Vincent C. Kuan