The Ministry of the Interior is the central government branch with authority over the police, and according to Article 2 and Article 9, Subparagraph 2, of the Policeman Act, it has the authority to promulgate police administrative ordinances. However, if a police administrative ordinance is related to any restriction on the people’s freedoms and rights, it should also be bound by the principle of legal reservation as mentioned above. Article 2 of the Policeman Act which provides that: “the duty of a policeman is to maintain public order, to protect people, to prevent all kinds of infringement, and to advance people’s welfare,” and Article 9, Subparagraph 1, of the same law which provides that: “the police have the authority to promulgate police administrative ordinances,” are provisions regarding the definition and allocation of the authority and duty of policemen under organizational law but not regarding the function of behavioral law. Therefore, those provisions do not provide legal foundation or authorization for the police authority to issue administrative ordinances to restrict the people’s freedoms and rights.
Where an announcement of an administrative agency imposes restraint on the people’s freedom, the requirements and standards of such announcement must be specifically and clearly prescribed by law. The foregoing has been explained in J. Y. Interpretation No. 564. Though Article 63, Paragraph 1, Subparagraph 8, of the Social Order Maintenance Law provides that: “A person who manufactures, transports, sells, possesses, or publicly displays weapons prohibited by an announcement of the governing authority shall be punished with a detention of not more than 3 days or a fine of not more than NT$30000,” the so-called ‘by an announcement of the governing authority’ shall mean an announcement made according to law that has specifically and clearly prescribed the requirements and standards of the announcement. It should not be taken that the provision per se provides the basis of the authorization to make an announcement restricting the people’s freedoms and rights.
Article 8-1 of the Regulation Governing Toy Guns (repealed) amended and promulgated jointly by the Ministry of the Interior Directive Tai (82) Nei-Jing-Tze No.8190093 and the Ministry of Economic Affairs Directive Jing (81) Shang-Tze No.235625 on December 18, 1992 (repealed jointly by the Ministry of the Interior Directive Nei-Jing-Tze No.0910075691 and the Ministry of Economic Affairs Directive Shang-Tze No.09002269260 on May 8, 2002) provides that: “toy guns that are similar to real guns and that are likely to jeopardize public security shall be forbidden by public announcement made by the Ministry of Economic Affairs.” Thus, pursuant to Article 2 and Article 9, Subparagraph 1, of the Policeman Act and Article 8-1 of the Regulations Governing Toy Guns, the Ministry of the Interior by Directive Tai (82) Nei-Jing-Tze No.8270020 of January 15, 1993 (repealed on May 10, 2002) stipulated that ‘’1. in order to maintain public order, to ensure social stability and to protect the safety of the people and property, from the date of this announcement, any person who manufactures, transports, sells, possesses, or publicly displays any toy guns which are similar to real guns without permission shall be punished according to the relevant provisions of the Social Order Maintenance Law.” Though the order mentioned above was issued by the Ministry of the Interior as the authority in charge of the police to maintain public security and is necessary for practical purposes since the relevant law and system is not fully developed, the prohibition against the manufacture, transportation, sale, possession, or public display of toy guns which are similar to real guns and the punishment of violators are related to the restriction of the people’s freedoms and rights and should be regulated by legislative law or orders authorized explicitly by legislative law. The order issued by the police authority to limit the freedoms and rights of the people as mentioned in the above is not authorized by legislative law and has had negative impact on the freedoms and rights of the people; hence, they should be regulated only by legislative law or administrative ordinance authorized by legislative law. Article 2 and Article 9, Subparagraph 1, of the Policeman Act, and Article 63, Paragraph 1, Subparagraph 8, of the Social Order Maintenance Law can not serve as the legal foundation and authority of the orders. Article 174-1 of the Administrative Procedures Act, augmented on December 27, 2000, and amended and promulgated on December 28, 2001, is a sunset clause that provides that “matters that should have been regulated by law or by orders authorized by law but are regulated by administrative orders shall, for the stability of law, remain valid for two years after the coming into force of that law.” This provision, however, can not be deemed as a broad legal authorization of administrative orders. Furthermore, the police orders under discussion were implemented prior to the promulgation of the Administrative Procedures Act. Therefore, there is no legal issue regarding the applicability of Article 174-1 of the Administrative Procedures Act as to the effectiveness of the Regulation Governing Toy Guns and the Directive Tai (82) Nei-Jing-Tze No. 8270020 of the Ministry of the Interior. In conclusion, the orders issued by the police authority which restrict the freedoms and rights of the people mentioned in the above are not authorized by legislative law, have had negative impact on the freedoms and rights of the people, are contrary to the principle of legal reservation clause of Article 23 of the Constitution and should be considered null and void [or must no longer apply].