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  • Interpretation
  • No.265
  • Date
  • 1990/10/05
  • Issue
    • Is it constitutional to impose restrictions on entry into the country against any citizen who has not lived in the free area continuously for a certain period of time after leaving the enemy-occupied area under the National Security Act for the Period of National Mobilization for Suppression of the Communist Rebellion?
  • Holding
    •        The restrictions on entry into the country imposed by Article 3-II (ii) of the National Security Act for the Period of National Mobilization for Suppression of the Communist Rebellion were intended to maintain the country*s then existing social order during the period for the suppression of the communist rebellion and are therefore not in conflict with the Constitution.  As to the provision stating that: “A citizen may not be permitted to enter the country if the citizen has not resided in the free area for a certain period of time,” as set forth in the first part of Article 12 (vi) of the Enforcement Rules of the said Act, it is designed to provide a fact-finding guideline for the competent authority while exercising its administrative discretion according to the law mentioned above and thus is consistent with the purposes of the aforesaid Act to guarantee national security and safeguard social stability.  However, the said Enforcement Rules should be reviewed and amended from time to time after taking into account the purposes of Article 3-II (ii) of the said Act so as to meet the needs as dictated by social developments.
      
  • Reasoning
    •        The rationale of Article 10 of the Constitution, which stipulates that the people shall have freedom of residence and migration, is to protect the people*s freedom to choose and change their residence and to travel, including the right to exit or enter the country.  In accordance with Article 23 of the Constitution, however, such fundamental right shall not be restricted by law except when it is necessary to prevent infringement upon the freedom of other persons, to avert an imminent crisis, to maintain the social order, or to advance the public interest.  Article 1 of the National Security Act [Promulgated?] during the Period of National Mobilization for Suppression of the Communist Rebellion expressly provides that the Act was enacted for the purposes of guaranteeing national security and safeguarding social stability during the period of national mobilization for suppression of the communist rebellion.  The provision of Article 3-II (ii) of the said Act that entry into and exit from the country may not be permitted if, judging from the facts, it is reasonably suspected that any person may pose a threat to national security or social stability, is a restriction imposed on the people*s freedom of travel.  As far as entry into the country is concerned, it is necessary to adopt such restriction of entry to maintain social order when the nation has suffered severe calamities even if a conflict thus exists between the preservation of social order and the people*s freedom to travel.  As such, it is not in conflict with the Constitution.
      
    •        As to the provision of the first half of Article 12 (vi) of the Enforcement Rules of the said Act as amended and issued by the Executive Yuan on November 18, 1988, stating that: “A citizen who has not resided in the free area continuously for five years (later amended to four years) after leaving the enemy-occupied area may not be allowed to enter the country,” it is designed to provide a fact-finding guideline for the competent authority while exercising its administrative discretion according to the law mentioned above, which does not suggest that entry into the country will be flatly denied in the event of the aforesaid situation.  Therefore, the relevant language of the said article prescribing, “…may not be allowed,” instead of “…shall not be allowed,” is consistent with the purposes of the aforesaid Act to guarantee national security and safeguard social stability.  However, the said Enforcement Rules should be reviewed and amended from time to time after taking into account the purposes of Article 3-II (ii) of the said Act so as to meet the needs as dictated by social developments.
      
    • *Translated by Vincent C. Kuan.
      
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