Article 18 of the Constitution guarantees the people’s right to hold public offices, which encompasses the right of a public functionary to be appointed, promoted and transferred pursuant to law after taking his or her office. The essential contents of the appointment, promotion and transfer shall be prescribed by law. If the competent authority, while setting forth the applicable enforcement rules by the authorization of law, does not take a distorted view [See comments above.] of the general legal construction methodology in making supplementary interpretations in respect of the applicable provisions concerning appointments and promotions, there is no violation of the principle of legal reservation to the extent that it is consistent with the relevant constitutional principles and legal intentions.
Article 17-III of the Public Functionaries Appointment Act as amended and promulgated on November 14, 1996, (hereinafter referred to as the “Appointment Act”) provides that if a public functionary with the fifth designated appointment rank, who is certified by the Ministry of Civil Service as qualified for the highest base salary, has received Grade A twice and Grade B or above once for the year-end performance evaluation during the last three years and successfully completed the training program for promotion to the recommended appointment rank while possessing certain other qualifications, he or she shall be eligible to be promoted to the sixth recommended appointment rank without having to pass any promotion examination notwithstanding the provisions of Paragraph I of said Article. The aforesaid provision is designed to further establish a channel for performance-based promotion in addition to the existing promotional system via examinations, thus enabling those with excellent service records to have an opportunity to be promoted. Nevertheless, in order to prevent any major impact on the civil service system, any blocking of the promotional channel for those who qualify for the recommended appointment rank by passing examinations, and any restrictions on the qualifications of middle- and high-ranking government officials, the legislature has set forth certain conditions in respect of the performance, years of service, etc., for those who are eligible to be promoted to the sixth recommended appointment rank pursuant to said provision. Furthermore, Article 17-IV of said Act provides that any person eligible to be promoted to the recommended appointment rank based on performance shall be qualified to hold an office below the seventh recommended appointment rank only unless otherwise qualified by means of passing any of the examinations provided in Subparagraphs 1, 2 and 4 of Paragraph I of said Article. The aforesaid provision has set limitations on the offices to be held by a public functionary who is promoted to the recommended appointment rank so as to balance the promotions based on examinations. It is rightfully within the legislative discretion to do so.
Article 17-IV of the aforesaid Appointment Act provides that any person eligible to be promoted to the recommended appointment rank based on performance shall be qualified to hold an office below the seventh recommended appointment rank only. As for the phrase “…to hold an office below the seventh recommended appointment rank only,” it is too vague and ambiguous regarding the legislative reasons and statutory contexts to allow any clear determination of whether a person promoted to the recommended appointment rank based on performance shall be eligible to take an office not higher than the seventh recommended appointment rank or that such a person shall be eligible to hold an office whose highest rank is below the seventh recommended appointment rank. Therefore, in order to preserve the integrity of the promotional system for civil servants, the competent authority, after considering the provisions of Article 18 of the Constitution, which guarantees the people’s right to hold public offices, set forth in Article 15-II of the Enforcement Rules of the Public Functionaries Appointment Act as amended and promulgated on December 10, 1996 that “‘The offices below the seventh recommended appointment rank’ referred to in Article 17-IV of the Act shall mean those offices whose highest rank is the seventh recommended appointment rank.” The foregoing is a supplementary interpretation in respect of the aforesaid provisions, which should fall within the scope of reasonable interpretation of the enabling statute, considering the resulting consequences. In other words, a public functionary with the fifth designated appointment rank who is promoted based on his or her performance is thus prevented from holding an office whose highest rank is above the seventh recommended appointment rank when such a public functionary cannot be promoted to a rank higher than the seventh rank according to the enabling statute; otherwise, the ranking design, which should disallow one office having precedence over another office whose highest rank is above the seventh rank, will be rendered meaningless. Therefore, the said provision does not contradict the provisions of Article 17-IV of the Appointment Act, which sets limitations on promotions for those personnel who are promoted to the recommended appointment rank based on performance. Moreover, it does not violate the right of the people to hold public offices as guaranteed under Article 18 of the Constitution nor does it violate the principle of legal reservation as embodied under Article 23 thereof.
*Translated by Vincent C.Kuan.