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  • Interpretation
  • No.483
  • Date
  • 1999/05/14
  • Issue
    • Are the provisions of Article 18, Paragraph 1, Subparagraph 3, of the Public Functionaries Appointment Act, which allows the transfer of a legally appointed official to a lower rank or lower grade position, and Article 13, Paragraph 2, of the Public Functionaries Remuneration Act and Article 7 of the Enforcement Rules of said Act, which have the effect of capping the annual salary increase of the transferred official once he/she reaches the cap in his/her new position, consistent with Article 18 of the Constitution, which protects the people’s right to hold public office?
  • Holding
    •        A public official once appointed to a rank and grade with pertinent salary level should not be downgraded or have his/her salary reduced without review by the competent authority charged with the discipline of public functionaries according to legal procedure. Such is the institutional protection afforded by the Constitution for the right of holding public office and the source of Article 1 of the Public Functionaries Discipline Act, Article 16 of the Public Functionaries Protection Act and Article 16 of the Public Functionaries Remuneration Act. 
      
    •        The first sentence of Article 18, Paragraph 1, Subparagraph 3, of the Public Functionaries Appointment Act provides “A legally appointed official, unless he/she consents of his/her own free will, should not be transferred to a lower rank position; if transferred to a lower grade position within the same rank, he/she shall be deemed appointed to the original grade.” The supervisor with power of appointment and dismissal may accordingly transfer a higher rank or grade official to a position of lower rank or grade. However, once transferred, according to Article 13, Paragraph 2, of the Public Functionaries Remuneration Act and Article 7 of the Enforcement Rules of the said Act, if such official’s salary level has already reached the annual salary level cap of the new position, he/she will not be promoted during merit evaluation. The result of such high to low transfer is that, no matter how meritorious his/her performance, or whether he/she has reached such cap in his/her original grade, there is no opportunity for promotion. Then the transfer becomes, in fact if not in name, something similar to disciplinary demotion or salary reduction. This is not in accordance with the purpose of constitutional protection of the people’s right to hold public office. Therefore, the competent authority should promptly review and amend the abovementioned Public Functionaries Appointment Act, Public Functionaries Remuneration Act and related rules.
  • Reasoning
    •        Under Article 18 of the Constitution, people have the right to hold public office. Article 1 of the Public Functionaries Discipline Act provides, “Except as otherwise provided by law, public functionaries should only be disciplined in accordance with this law.” Article 16 of the Public Functionaries Protection Act provides, “The salary level of public functionaries affirmed after proper review should be protected and no downgrading or salary reduction should be allowed except in accordance with law.” The Public Functionaries Remuneration Act promulgated on July 16, 1986, provides in Article 16, “The rank and grade affirmed by the Civil Service Authority should not be downgraded unless in accordance with the Public Functionaries Discipline Act and other relevant laws.” Thus, the legally acquired rank, grade and salary level of public functionaries should not be downgraded or reduced except through a decision, after proper review, according to legal procedure by the authority charged with the discipline of public functionaries. Such is the institutional protection for holding public office under the Constitution, and the source of Article 1 of the Public Functionaries Discipline Act, Article 16 of the Public Functionaries Protection Act and Article 16 of the Public Functionaries Remuneration Act.     
      
    •        The first sentence of Article 18, Paragraph 1, Subparagraph 3, of the Public Functionaries Appointment Act promulgated on April 21, 1986, provides, “A legally appointed official, unless he/she consents of his/her own free will, should not be transferred to a lower rank position; if transferred to a lower grade position within the same rank, he/she should be deemed appointed to the original grade.” The supervisor with power of appointment and dismissal may accordingly transfer a high rank or grade official to a position of lower rank or grade. However, according to Article 13, Paragraph 2, of the Public Functionaries Remuneration Act, “Officials transferred from a higher grade to a lower grade within the same rank with the original salary level shall not be promoted during merit evaluation.” Article 7, Paragraph 1, of the Enforcement Rules of the Public Functionaries Remuneration Act promulgated on January 14, 1985, provides, “the sentence ‘officials transferred from a higher grade to a lower grade within the same rank with the original salary level shall not be promoted during merit evaluation’ in Article 13, Paragraph 2, of this Act refers to the rule that an official who is transferred from a higher grade to a lower grade position within the same rank, but retains his/her original grade, once his/her original salary level has reached the annual salary level cap of the new position, shall not be promoted during merit evaluation.” Officials whose salary level has reached such cap shall not be promoted, with the result that, such a high-low transferee, no matter how meritorious his/her performance, or whether he/she has reached such cap under his/her original position, has no opportunity for promotion. Then the transfer becomes, in fact if not in name, something similar to disciplinary demotion or salary reduction. This is not in accordance with the purpose of the constitutional protection of the people’s right to hold public office. Therefore, the competent authority should promptly review and amend the abovementioned Public Functionaries Appointment Act, Public Functionaries Remuneration Act and related rules. 
      
    • *Translated by Professor S. M. Yu.
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