The Irrigation Associations are public legal persons empowered by the law to pursue water conservancy for the state. According to Article 14 of the Organic Act of the Irrigation Association, all lessees or emphyteuis owners of state owned or private cultivated lands, owners or right-of-dien owners of private cultivated lands, and representatives or beneficiaries of state owned cultivated lands in the region should be members of the Irrigation Association of that region. Paragraph 1 of Article 15 of the same law states, “The members in the region of the irrigation association have the right to utilize water conservancy facilities and other rights defined by the law, and are obliged to pay membership dues and other obligations defined by the law. Article 22 of the same law states, “The organization or authorized size of the irrigation association, rules of convention and debate for the committees in the association, assignment, treatment of staff, management of the association, unless otherwise stipulated in this law, shall be proposed by the provincial government and approved by the responsible agency of the Central Government.” This is to increase public benefit, in accordance with the purpose of empowerment of law, and shall not be incompatible with Article 15, protection of property rights, or Article 23, limits to basic rights, of the Constitution.
According to long established custom, there are water conservancy groups under the irrigation associations. Each water conservancy group covers an irrigation area of 51 to 150 hectares, in the light of the ditches between the fields. A huge watering area might be split into two sections while small areas might be combined to form one section. (See Paragraph 1 of Article 24 of the Organic Regulations of the Irrigation Association of Taiwan (Jan. 31, 1986). Water conservancy facilities within a group covering area are called minor water inlets or outlets. Conservancy facilities outside of or connecting with a group covering area are overseen by the irrigation association. Considering the widespread area of the fields, limited water resources, and size differences among fields, to ensure the efficiency and effectiveness of irrigation, the management and maintenance of water inlets and outlets are overseen by the group itself, with group members helping each other with labor or fees. The fees are decided among the group members and then the irrigation association is entrusted with the collection for the group’s disposal. Thereupon, the sharing, managing and use of water management fees or maintenance fees for minor water inlets or outlets according to the custom, has the nature of private contracts. (See Letter N.L. No. 87146255 of Oct. 19, 1998, from the Council for Agricultural Affairs, Executive Yuan) Remedies should be sought according to civil litigation procedures in case of disputes. The above fees are different to those obligations under the public laws, such as membership fees, constructing fees and construction or water utilization fees. Article 29 of the Organic Regulations of the Irrigation Association of Taiwan (Jan. 31, 1986) states that, “(Groups) may entrust the irrigation association with the collection of the fees regarding water management and maintenance of water inlets and outlets”. This clearly shows the private nature of the legal relationship among the group members under private contract. Budgeting by the irrigation association to subsidize the fees does not change the nature. Therefore, the provision of Paragraph 2 of Article 31 of the Organic Regulations of the Irrigation Association of Taiwan (amended to be Paragraph 2 of Article 26 on May 27, 1995) that group members share the water management fees, and the provision of Article 32 (amended to be Paragraph 2 of Article 28) that the remaining part of the maintenance fees of minor water inlets and outlets should be shared by group members while the irrigation association should budget as much as possible to relieve the farmers’ burden, only affirmed the long established custom, and should not be incompatible with the constitutional intent to protect property rights.
As long as the irrigation associations are public legal persons, their legal relationship to their members is a public legal relationship. Moreover, the control of water discharge or flow and maintenance of water passages both need the involvement of the governmental authority. As irrigation associations are public legal persons by law, and the administrative litigation system has been improved, it is important to decide whether the long established custom of private legal relationship should be preserved, or that the water management and maintenance should be defined as obligations under public laws. Furthermore, No. 3 of the Outlines of the Irrigation Group Meeting Rules of the Chia Nan Irrigation Association state, “meetings should not be held without at least half of the members in attendance,” but this is not applicable if two or three meetings are called for the same issue. No. 6 of the said rules state, “3 days advance notice should be given to members for irrigation group meetings, and on the day of the meeting, measures such as broadcasts should be taken to urge members to attend the meeting.” The issues related to the number of attendees or measures to urge members to attend, are subject to constitutional democratic principles, and ought to follow the democratic principle of decision by majority. Nevertheless, the nature of what the Outlines provide is not categorized as laws or regulations as defined in the Constitutional Interpretation Procedure Act, and thus the Outlines are not subject to our interpretation.
* Translated by Fan,Chien-Te.