The internal guidelines of administrative bodies assume the status of legislation once they are proclaimed or announced to take effect. Those guidelines that have not been proclaimed or announced but have the effect of regulating people*s rights and obligations in general and have became the basis of concrete administrative measures are regulations applicable to the public; that is, they have the same status as legislations, ordinances or administrative rules and are subject to review by this Yuan. The aforementioned "Implementation Plan for the Relocation of Residents in the Bi Shan, Yun An and Ge To Villages of the Shrdiang County, Feitsui Reservoir Catchment Area" has been approved by the Executive Yuan and proclaimed by the Taipei Special Water Supply Region Management Committee, Ordinance No.1855 of March 6, 1996. Thus the Plan shall be reviewed as an administrative ordinance.
Article 10 of the Constitution has expressly provided that the people shall have the freedom of residence and migration. In order to construct reservoirs, the government may expropriate the people*s property with compensation. Once reservoirs have been built, administrative bodies may restrict activities of residence and movement in certain areas in order to maintain the purity and safety of the water source, the quality and quantity in the catchment area. However, such restriction on the people*s freedom of residence and migration shall not exceed the degree of necessity required by Article 23 of the Constitution and must be mandated by the law. The foregoing has been explained by this Yuan*s Interpretations Nos. 443 and 454. Article 11 of the Water Supply Act authorizes administrative bodies to make provisions for the "classification of the water quality and quantity protection area and the prohibition of any activity that is likely to be hazardous to the water quality and quantity in the said area." Thus, after the Feitsui Reservoir was built, the competent authority announced an "Implementation Plan for the Relocation of Residents in the Bi Shan, Yun An and Ge To Villages of the Shrdiang County, Feitsui Reservoir Catchment Area" pursuant to the aforementioned authorization. The Plan seeks to preserve the water quality and quantity in the protected water supply region, and the means it adopts are necessary, from an objective point of view, to achieve this. Although the Plan places a restriction on the people*s freedom of residence and migration, it cannot be said to have infringed upon Article 10 of the Constitution since the means of relocation conforms to the principle of proportionality when considering the end ─the protection of water resource.
The administrative ordinances, set down by administrative bodies, having the nature of compensatory administrative measures, which grant benefits to the people, should be bound by the relevant constitutional principles, especially the principle of equality. According to this Yuan*s Interpretation No.485, all social policy legislations shall be appropriate in their aims, being efficient use and proper allocation of resources, shall adopt means that are objectively necessary to help achieve the aims, and shall take into consideration the efficiency of such means and whether they are proportional in the achievement of the aims. Provisions for payment of relocation compensation in the aforementioned Implementation Plan are a type of Leistungsverwaltung which financially assists residents to vacate the catchment area, and stops activities of any residence and livelihoods of the area in order to maintain the purity and safety of the water source, the quality and quantity in the catchment area. Such provisions are appropriate in their aims. Since the ultimate aim is to vacate residences from the area, the prerequisite for an Leistungsverwaltung should be that of actual residence, with listings on the household registry being just one indicator of actual residence. However, the aforementioned Plan adopts household registry records as the sole determinant of actual residence in the said water supply region. This will exclude the residents who have actually been residing in and have vacated the water supply region from getting the benefit of relocation compensation. Although this does not contradict the principle of equality, it is inadequate as it fails to take into consideration other means of proving actual residence. In general, household registration is only an administrative control measure for special purposes. The law does not prohibit administrative bodies from utilizing household registration outside the scope of such purposes, for administrative convenience, and adopting household registration as the control mechanism, but they must conform to the principle of equality in Article 7 of the Constitution. Those individuals who can prove long-term residence in the water supply region before the date of the abovementioned Ordinance should be awarded relocation compensation by administrative bodies despite not having such household registration. Provisions for determining actual residence in the said Implementation Plan should be reviewed and amended in line with this Interpretation.
*Translated by Wei-Feng Huang of THY Taiwan International Law Offices.