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  • Interpretation
  • No.405
  • Date
  • 1996/06/07
  • Issue
    • Does Article 21, Paragraph 2, of the Educators Appointment Act, which grants to those who have not been qualified through examination the same status for appointment to public offices as those who have been so qualified, contravene the Constitution?
  • Holding
    •        Pursuant to Article 85 of the Constitution, a system of open competitive examination shall be put into operation in the selection of public functionaries, and no person shall be appointed to a public office without being qualified through such examination, which explicitly sets forth the principle of appointment by examination.  Qualification for employment as school staff shall be subject to the passing of the School Administrative Personnel Examination or the Senior and Junior Examinations of comparable subjects. The language “the original relevant laws and regulations shall apply” in Article 21 of the Educators Appointment Act, as amended and promulgated on December 19, 1990, does not grant to those who have not been qualified through examination the same status for appointment to public offices as those who have been so qualified, and therefore such persons may only remain employed at their original schools, as held in J.Y. Interpretation No. 278. In Article 21, Paragraph 2, of the Educators Appointment Act, as amended and promulgated on July 1, 1994, the language “may additionally be transferred among schools” grants to those who have not been qualified through examination nearly the same status for appointment as civil servants as those who have otherwise qualified, which contradicts Articles 7 and 85 of the Constitution and the above-referred holding.  Consequently, it shall become null and void from the publication date of this Interpretation.
  • Reasoning
    •        The Judicial Yuan interprets the Constitution and has authority to unify the interpretation of statutes and ordinances, as stipulated in Article 78 of the Constitution.  Laws that are in conflict with the Constitution shall be null and void, and whenever doubt arises as to whether or not a law is in conflict with the Constitution, interpretation thereon shall be made by the Judicial Yuan as explicitly provided in Article 171 of the Constitution.  Moreover, Article 4 of the Amendment of the Constitution states that the Judicial Yuan shall appoint a certain number of Grand Justices, who apart from being vested with the authority laid out in Article 78 of the Constitution, shall form the Constitutional Court to adjudicate the dissolution of political parties in the event of conflict with the Constitution, substantiating that the Constitution vests in the Grand Justices the considerable duty of preserving the hierarchy of laws as well as constitutional order.  Accordingly, Interpretations on the Constitution rendered by Grand Justices of the Judicial Yuan in accordance with the Constitutional Interpretation Procedure Act are binding upon all organizations and people of the nation, regardless of whether the Interpretations concern the meaning of the Constitution, are solutions of disputes concerning the applicability of the Constitution or adjudication on the unconstitutionality of statutes, as held in J.Y. Interpretation No. 185.  Even though the Legislative Yuan enjoys a wide range of freedom in exercising its legislative powers, it goes without saying that such exercises of power may not overstep the boundaries laid down by the Interpretations on the Constitution rendered by the Judicial Yuan.  
      
    •        Article 85 of the Constitution stipulates the selection of civil servants shall be by a system of open competitive examination, and no person shall be appointed to a public office without being so qualified through such examination, hence explicitly setting forth the principle of appointment by examination.  Qualification for appointment as school staff shall be subject to passing the School Administrative Personnel Examination or the Senior and Junior Examinations of comparable subjects as provided in Article 21 of the Educators Appointment Act of May 1, 1985, as amended and promulgated on December 19, 1990, and J.Y. Interpretation No. 278 has held the said statute to be in conformity with Article 85 of the Constitution. Prior to promulgation of the above-mentioned statute, the appointment of school staff was through a selective process, which although in contravention with the purposes of the Constitution proclaiming appointment by examination, existed as an exceptional measure from the time the legal system lacked comprehensiveness.  With respect to the qualifications of school staff whose current employment commenced prior to enactment of the above-mentioned Regulation and was by a system of selective process pursuant to the language “the original relevant laws and regulations shall apply” as provided in Article 21 of said Act, amended and promulgated in 1990, such school staff may not obtain the same qualifications for appointment as those who have passed examination, as held in the J.Y. Interpretation herein. Although the rights of such staff under the former laws and regulations shall be preserved, said rights shall be limited to the extent not conflicting with the purpose of appointment by examination as proclaimed by the Constitution.  The above Interpretation does not prohibit the promotion of such staff within their original schools; however, their employment shall be limited to their original schools, which has been the greatest preservation of their original rights without contradicting the principle of appointment by examination intended by the Constitution.  This exception shall not be further expanded by additional legislation to avoid violation of the principle of equality.  .  In Article 21, Paragraph 2, of the Act, as amended and promulgated on July 1, 1994, the language “may additionally be transferred among schools” grants to those who have not been qualified through examination nearly the same status for appointment as civil servants as those who have passed the examination.  Such provision is unfair to the persons who are appointed by the passing of examination after enactment of said Act, and is inconsistent with Articles 7 and 85 of the Constitution and the above-referred holding herein.  Consequently, it shall become null and void from the publication date of this Interpretation.  As for the inconvenience caused to such staff in restricting their employment to their original schools, it would be appropriate for the Examination Yuan, in accordance with the authority conferred upon it by law, to hold relevant examinations to establish their appointment qualifications. 
      
    • *Translated by Spenser Y. Hor.
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