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  • Interpretation
  • No.467
  • Date
  • 1998/10/22
  • Issue
    • What is the status of the provincial level of government now that the 1997 Amendments to the Constitution are in effect?
  • Holding
    •        Despite the fact that Article 9 of the 1997 Amendments to the Constitution is in effect, the provincial government is still a local government. In view of the fact that it no longer has jurisdiction over matters regarding local self-government and has been deprived of the organic right of self-government, it shall not be recognized as a legal public legal person of local self-government. However, if legislation, in accordance with the spirit and purpose of the abovementioned Amendments to the Constitution, empowers the provincial government to exercise exclusive power of local self-government and to have certain legal rights and responsibilities, it certainly may thus acquire the status of a legal public legal person.
  • Reasoning
    •        The division of powers between the central and local governments is regulated by the Constitution and statutes with constitutional delegation. 
      
    •        A local governments meeting the following criteria will be considered as a legal public legal person of local self-government: (1) it may enact and enforce regulations regarding local self-government; and (2) it has the organic power of self-government. Article 9 of the 1997 Amendments to the Constitution provides that members of the governing body of the province, including the chairman, will be nominated by the Premier and appointed by the President; members of the advisory council will also be nominated by the Premier and appointed by the President; the provincial government shall execute orders of the Executive Yuan and supervise counties on matters of local self-government; the elections for members of the Taiwan Provincial Assembly and the Government of the Taiwan Provinces shall be suspended following the conclusion of the current terms of offices of these two official bodies; and future modification of the functions, operations, and organization of the Taiwan Provincial Government may be specified by law. Accordingly, the provincial government is still a local government. Moreover, as the Taiwan Province no longer has jurisdiction over matters of local self-government and has been deprived of the organic right of self-government, it shall not be recognized as a legal public legal person of local self-government.     
      
    •        In addition to those organizations which share national sovereignty, other organizations may also be considered as a legal public legal persons if their memberships are mandatory, if they are entitled to exercise public authorities and if they have the capacity to carry out legal rights and responsibilities. Therefore, in addition to national and local-level governments with the right of self-government, there are other legal public legal persons which have long been recognized by law. 
      
    •        The Legislative Yuan has full discretion to decide whether to authorize the provincial government with the necessary competency to become a legal public legal person. Of course, the special law on the reorganization of the Taiwan Provincial Government provided in Article 9, Paragraph 3, of the Amendments to the Constitution shall not conflict with other prescriptions provided in the same Article of the Constitution.  
      
    • *Translated by Professor Jyh-Pin Fa.
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