An administrative decision made by either a central or a local government authority to remove a public functionary from his office pursuant to the provisions of the Public Functionaries Merit Evaluation Act or other applicable laws and/or regulations has a direct impact on the constitutionally guaranteed right of such public functionary to hold public office.  Therefore, such public functionary may, as a matter of course, exercise his right to file an administrative appeal or right to sue as provided for under Article 16 of the Constitution.  Such public functionary has petitioned the competent authorities and the personnel authorities, respectively, for a review and a second review of the decision at issue pursuant to relevant laws and, by doing so or resorting to other similar procedures to petition for relief, an administrative appeal and re-appeal proceeding should be deemed to have been sought.  If such public functionary is not satisfied with the decisions of the aforesaid authorities, he should be allowed to institute an administrative litigation so as to bring the matter in line with the legal principle that there is a remedy where there is a right.  Those portions of the opinions, as given in Precedents P.T. No. 398 (Ad. Ct. 1962), P.T. No. 229 (Ad. Ct. 1964), T.T. No. 19 (Ad. Ct. 1965) and P.T. No. 414 (Ad. Ct. 1968), which are not in line with the intent described above, should no longer be cited and applied. In respect of the decision of a major demerit made under the Public Functionaries Merit Evaluation Act, since the capacity of a public functionary is not altered thereby and, thus, no right of a national to hold public office is directly affected, the aforesaid Precedents, in denying the public functionary his right to seek relief through litigation, are not in violation of the Constitution.

       Precedent P.T. No. 19 (Ad. Ct. 1951) is intended to interpret the application of Articles 2 and 24 of the Public Functionary Service Act.  The internal order at issue was given by a superior agency within the parameters of its power of supervision, but was not an unfavorable disposition that would affect the capacity of the public functionary, who was not entitled to sue for relief in connection therewith.  The said Precedent is not unconstitutional.

       Under Article 77 of the Constitution, the discipline of a public functionary is a power entrusted to the Judicial Yuan, under which the Committee on the Discipline of Public Functionaries is established to take charge of disciplinary matters.  A decision to remove a public functionary from his office is, in essence, a disciplinary action regardless of the language used in rendering such decision.  Whether the exercise of such power and authority and the provision of administrative relief are adequate under the Constitution is a question for the relevant authorities to answer after a comprehensive and thorough review of the current practice and the appropriate adjustment thereof.

       Whether a public functionary who is subjected to an administrative decision may institute an administrative litigation depends on the subject matter of such decision, as has been made clear in J.Y. Interpretations Nos. 187 and 201.  An administrative decision made by either a central or a local government authority to remove a public functionary from his office pursuant to the provisions of the Public Functionaries Merit Evaluation Act or the Regulations Governing the Evaluation of Performance by Members of Public School Faculty and Staff has a direct impact on the constitutionally guaranteed right of such public functionary to hold public office. Before the relevant laws are properly amended or modified, any public functionary who is subjected to such disposition may, as a matter of course, exercise his right to file an administrative appeal and right to sue as guaranteed under Article 16 of the Constitution by petitioning a judicial authority for relief.

       The public functionary has petitioned the competent authorities and the personnel authorities, respectively, for a review and a second review of the decision at issue pursuant to relevant laws and, by doing so or resorting to other similar procedures to petition for relief, an administrative appeal and re-appeal proceeding should be deemed to have been sought.  If such public functionary is not satisfied with the decisions of the aforesaid authorities and believes that his lawful rights have been infringed upon thereby, he should be allowed to bring an administrative litigation so as to bring the matter in line with the legal principle that there is a remedy where there is a right.  Precedent P.T. No. 398 (Ad. Ct. 1962) says, “According to Article 1 of the Administrative Appeal Act, no administrative appeal may be instituted unless any right or interest of a person is infringed upon as a result of an inequitable or illegal disposition made by either a central or a local government agency.  In respect of the disciplinary measure received by a public functionary, regardless of the level of the government in which such public functionary is serving, in his capacity as a public functionary, no such administrative appeal may be brought in connection therewith because such measure differs in its nature from the disposition made by a government agency which infringes upon the rights of anyone as a civilian.” Precedent P.T. No. 229 (Ad. Ct. 1964) states, “An administrative act subjecting a public functionary to any disciplinary action in his capacity as a public functionary is purely a matter of administrative discretion, which is not comparable to a disposition made by a government agency which infringes upon the rights of anyone as a civilian, and, as such, no administrative appeal may be instituted under any administrative appeal proceedings in respect thereof.  In spite of the discharge of the Plaintiff from his office and, consequently, loss of his capacity as a public functionary, no administrative appeal may be filed by the Plaintiff, who should not be regarded as a civilian having been subjected to an administrative decision made by a government agency, because the administrative act at issue occurred at a time when the Plaintiff was still a public functionary.”  “An administrative suit may not be brought unless and until a plaintiff has filed an administrative appeal and, subsequently, an administrative re-appeal against such government agency as has made an illegal disposition which infringed upon the right of such plaintiff who is not satisfied with the decisions rendered therein. The Plaintiff, in his capacity as a public functionary, was subjected to an administrative act in respect of personnel administration, which is apparently different from the situation where a disposition made by a government agency infringes upon the right of anyone as a civilian.  Other than filing with the relevant supervising authorities in charge of the matter at issue for a corrective decision in regard thereto, no administrative litigation procedure should be resorted to for relief.  As an additional note, the notice given by the Secretariat of the Examination Yuan is not a decision made under the procedure applicable to an administrative appeal and, therefore, the Plaintiff has erred in bringing an unlawful administrative suit in this Yuan,” so reasoned the court in Precedent T.T. No. 19 (Ad. Ct. 1965). And, finally, Precedent P.T. No. 414 (Ad. Ct. 1968) restated, “An administrative act subjecting a public functionary to any disciplinary action in his capacity as a public functionary is purely a matter of administrative discretion, which should be distinguished from a disposition made by a government agency which infringes upon the rights of anyone as a civilian, and, as such, no administrative appeal may be instituted against such agency in respect thereof.”  None of the aforesaid Precedents has tried to distinguish between contents of the administrative acts but, instead, has restricted the right of a public functionary to file an administrative appeal legally and to bring an administrative litigation altogether.   Those portions of the opinions as given in such Precedents, which are not in line with the intent described above, should no longer be cited and applied.  In respect of the mere decision of a major demerit made under the Public Functionaries Merit Evaluation Act, since the capacity of a public functionary is not altered thereby and, thus, no right of a national to hold public office is directly affected, the aforesaid precedents, in denying the public functionary his right to seek relief through litigation, are not in violation of the Constitution.

       Precedent P.T. No. 19 (Ad. Ct. 1951) states, “The capacity of a public functionary is different from that of a civilian in that a public functionary at a lower level has a duty to obey any order given by his superior agency-in-charge within the scope of its power of supervision and no administrative appeal may be filed under the Administrative Appeal Act in respect of such order.  A teacher or member of the staff of a high school or primary school who is appointed by law and/or order and rewarded with remuneration is a public functionary within the meaning of the Public Functionary Service Act, but such is not the case with a hired teacher or staff member.” The foregoing Precedent is intended to interpret the application of Articles 2 and 24 of the Public Functionary Service Act. The internal order at issue was given by a superior agency within the parameters of its power of supervision, but was not an unfavorable disposition that would affect the capacity of the public functionary, who was not entitled to sue for relief in connection therewith.  The said Precedent is not unconstitutional.

*Translated by Vincent C. Kuan