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  • Interpretation
  • No.481
  • Date
  • 1999/04/16
  • Issue
    • Shall Fukien Province hold gubernatorial and representative body elections as Taiwan province does?
  • Holding
    •        Article 17 of the 1992 Amendments to the Constitution authorized the Legislative Yuan to enact a unified law on local self-government. A province shall have a council and the governor shall be elected by the people of said province. This is designed for those provinces that were, in fact, able to exercise self-government. Article 64 of the Self-Governance Act for Provinces and Counties provided that the organization of the local council and government where territorial jurisdiction was incomplete should be directly regulated by the Executive Yuan. Elections of members of the council and the governor were denied according to the Regulations of Organization of the Fukien Provincial Government issued by the Executive Yuan. It is warranted by the existing facts and was in accordance with the spirit and purpose of the statutory delegation. It was also in harmony with the equal protection of law provided in Article 7 of the Constitution.
  • Reasoning
    •        Article 17 of the 1992 Amendments to the Constitution authorized the Legislative Yuan to enact a unified law on local self-government. Members of the provincial council and the governor of a province shall thus be elected by the people of the province. However, this may be applied only to those provinces that are, in fact, able to exercise self-government. In other words, without enacting the General Principles of Provincial and County Self-Government (which were originally required by the Constitution), an alternative statute was proposed to deal with the special case of Taiwan. Accordingly, a unified law based on a constitutional delegation on local self-government was enacted. Article 64 of this law further provided that the Executive Yuan should be authorized to issue a regulation on these provinces whose territory is incomplete. The Regulations of Organization of the Fukien Provincial Government issued by the Executive Yuan thus provided for a provincial government composed of seven to eleven members, one of whom shall be the chairman. All members shall be nominated by the Premier and appointed by the President. The council of the province was totally abolished. These laws and regulations had taken into account the special case of Fukien Province and are thus in harmony with the spirit and purpose of the authorizing statute.     
      
    •        Local self-government at the county level is explicitly provided for in the Constitution. As for local self-government at the provincial level, however, the Constitution has adopted a different approach by authorizing the Legislative Yuan to enact legislation. In terms of the constitutional principle of equality, it is well-established that substantial equality under the law is of the essence. It requires reasonably different treatments of factual differences based on the nature of the subject. The current territory and population actually under control of Fukien Province are totally different from those of the original. In view of the degree of complexity of public affairs, the case of Fukien is also obviously different from the Taiwan case. Therefore, the organization of Fukien Province shall be simplified for the furtherance of administrative efficiency. Based on these factual differences, the preclusion of popular election of members of the council and the governor is reasonable and does not conflict with the Constitution.     
      
    •        Although the 1997 Amendments to the Constitution made significant changes in provincial organization, the unified law was also later amended; hence, the different organization and arrangement provided in this Interpretation for the province with special territory are still valid. 
      
    • *Translated by Professor Jyh-Pin Fa.
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