The Taiwan High Court brought this case before this Yuan for an interpretation after the court examined a case and had doubt about the constitutionality of Article 3, Paragraph 1, of the National Security Act. The law provides that: “People exiting or entering the country shall apply to the Ministry of the Interior Entry and Exit Service Bureau to be granted permission and those who are not granted permission are prohibited from exiting or entering the country”. It should be addressed hereby that according to said Act, a person in violation of Article 6, Paragraph 1, would be subject to imprisonment of not more than three years or criminal detention and/or a fine of not more than ninety thousand NT dollars. Given that such punishment has significant bearing on the court’s rendering a judgment, it can be the objective in the application for an interpretation.
The rationale of Article 10 of the Constitution, which stipulates that the people shall have freedom of residence and movement, is to protect the people’s freedom to choose and change their residence and to travel, including the right to exit or enter the country. The people are one of the elements that constitute the country so they should not be excluded from the domain of the country. If the nationals choose their domicile and have a household registry in Taiwan Area, they can return to the homeland at any time without asking to be granted permission; however, the right of the people to exit or enter the country may be restricted in order to protect the safety of the country and the order of the society, only if the restriction is stipulated by law, pursuant to the principle of proportionality elaborated in Article of 23 of the Constitution, and only under such circumstances can it be in compliance with the Constitution’s objective to protect the people’s rights. Interpretation No. 454 of this Yuan is made in accordance with the same objective as hereby stated. Article 11 of the Amendments to the Constitution stipulates that “rights and obligations between the people living in a free area and those of the Chinese mainland area, and the disposition of other related affairs may be specially prescribed by law”, as such, the restriction imposed on the people from the Chinese mainland area to enter Taiwan area is consistent with the rationale of the Constitution. (See J.Y. Interpretation No. 497) For those who are citizens of the Republic of China, residing outside of the country and who have no domicile but have a household registry in Taiwan Area, the relevant provisions of the Immigration Act should also be applicable due to the nature of our nation’s unique circumstances. (See Article 3, Subparagraph 1, Article 5, Paragraph 1 and Article 7 of the Immigration Act) The people mentioned above who have a household registry in Taiwan may be presumed to have the intention to reside in Taiwan permanently.
The National Security Act During the Period of National Mobilization for Suppression of the Communist Rebellion was promulgated in 1987 when martial law was about to be abolished. Article 3, Paragraph 2, Subparagraph 2, of said Act, was stipulated to meet the country’s then existing requirements applicable to the period for the suppression of the communist rebellion and is therefore not in conflict with the Constitution. This Yuan’s Interpretation No. 536 has also explained the foregoing; however, after the abolishment of the National Security Act During the Period of National Mobilization for Suppression of the Communist Rebellion and martial law, the legal system of this country shall return to the normal course of operations. The Legislative Yuan, considering the above situation, has enacted the Immigration Act and it became effective on May 21, 1999. Furthermore, the legislature has in its sole discretion set out the effective date in relevant provisions of the law with respect to matters concerning exiting and entering the country. Article 3, Paragraph 1, of the National Security Act amended in 1992, making no distinction between those people who chose their domicile and thus have a household registry in Taiwan Area and those who have not, uniformly requires that people apply with the governing authority to be granted permission to enter the country and prohibits those people who are not granted permission from entering the country, and such provision also imposed a punishment clause on those people who enter the country without being granted permission. As such, the provision is in violation of the principle of proportionality elaborated in Article of 23 of the Constitution and the freedom of people to return to the homeland at any time. Consequently, such provision, for those parts that cannot be reconciled with the objectives of this Interpretation, shall be held invalid when the Act for exiting or entering the country promulgated by the legislative body is operative.
*Translated by Wei-Feng Huang of THY Taiwan International Law Offices.