The scope of application of Article 3 of the Act Governing the Recovery of Damage of Individual Rights during the Period of Martial Law, in particular, its definition of public servants, is related to the various terminologies adopted by legislations of this State to refer to public servants. According to the provisions in Article 86 of the Constitution and the Public Functionaries Appointment Act, reference to “public servants” means those who are qualified by law for government employment through examination and have titles or are ranked in the approved institutes. The existing legislations concerning public servants and referring to public servants in their titles, including the abovementioned Public Functionaries Appointment Act, Public Functionaries Remuneration Act, Public Functionaries Protection Act, Public Functionaries Promotion Act, Public Functionaries Merit Evaluation Act, Public Functionaries Retirement Act, Act Governing the Payment of Compensation to Surviving Dependents of Public Functionaries, shall not apply to military officers. Under the current system of law, public servants are defined to mean ordinary public officials, excluding military officers.
Article 3, Paragraph 1, of the Act Governing the Recovery of Damage of Individual Rights during the Period of Martial Law stipulates: "People who had been convicted of rebellion and/or treason during the period of martial law, sent to a reformatory, sued in a class action suit, or were subject to warrants of arrest, and had thus lost or been disqualified of the following qualifications, which may be restituted retrospectively in accordance with the law, upon application to the relevant authorities by the parties concerned: 1) successful completion of the public servants, specialists or technicians examination, 2) employment qualification for public servants, education personnel or government employees, 3) specialists and technicians* practicing permit, and 4) qualifying beneficiaries of financial assistance, retirement or insurance annuity." The provision permits the individuals who have lost or been disqualified of their various qualifications during the period of martial law, for reasons of having committed offences of rebellion and/or treason, to apply for restitution of their qualifications when certain conditions are met. Reference to "public servants" in Subparagraph 2 above means education personnel and government employees, and its scope of application is limited to public officials with the exclusion of military officers. This is different from Subparagraph 4 which provides for the restitution of qualifications for receiving financial assistance, retirement or insurance annuity, and is not restricted to public officials. Paragraph 5 of the same Article provides for the restitution of the said qualification for public officials without denying military officials such rights. Article 6 of the Enforcement Rules for the said Act, in an attempt to achieve the aforementioned purpose, provides: "Reference to pension in Article 3, Paragraph 1, Subparagraph 4, of this Act covers the lump sum and monthly pension payments to public servants and education personnel, and the retirement wage, sustenance allowance, after-service annuity and maintenance payment to military officials."
Article 3, Paragraph 1, of the Enforcement Rules of the said Act stipulates: "Reference to public servants in Article 3, Paragraph 1, Subparagraph 2, of this Act means “public officials,” with the exclusion of political appointees, publicly elected officials and contracted employees of the government, who receive remuneration under the regulations of the relevant bodies." It further refines the definition of public servants referred to in Article 3, Paragraph 1, Subparagraph 2, of the said Act which states: "qualification of public servants, education staff and government employees." Such definition does not cover military officers because their combat and other national defense-related missions are vital to the State*s national security and military needs. In addition, the training, age limitations for employment qualifications, conditions for promotion and duties to observe rules imposed on military officers are different from those of public officials. The definition has taken into consideration the difference in the nature of their services, and is not in contradiction with the principle of equality, nor does it exceed the authority granted by the empowering statute or infringe upon the Constitution. The question as to whether the rights of military officers should be reinstated is within the scope of the legislative body*s determination.
*Translated by Wei-Feng Huang of THY Taiwan International Law Offices.