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  • Interpretation
  • No.612
  • Date
  • 2006/06/16
  • Issue
    • Are the provisions of Article 31(i) of the erstwhile Regulation on the Supervision of and Assistance to Public and Private Waste Cleanup and Disposal Organs unconstitutional?
  • Holding
    •        Article 15 of the Constitution provides that the people’s right of work shall be guaranteed; that is, the people have the freedom to work and choose their occupations.  In order to promote public interests, restrictions may be imposed by law or orders as delegated by law on the means of engaging in work and on the necessary qualifications or other requirements to the extent that they are in line with Article 23 of the Constitution.  Where the law delegates the power of issuing orders to the competent authority for the purpose of making supplementary provisions, the contents thereof shall be in line with the legislative intent, and shall not go beyond the scope of the enabling statute.  As has been made clear by this Court in its previous interpretations, where an order is issued under the general authorization of the enabling statute, a comprehensive judgment shall be made in respect of the legislative purposes of the law itself and the associated meanings of the provisions on the whole, instead of adhering to the letter of the law, so as to determine whether it goes beyond the scope of legal authorization or not.
      
    •        Under Article 21 of the Waste Disposal Act as amended and promulgated on November 20, 1985, the central competent authority shall prescribe the regulations governing the supervision of and assistance to public and private waste cleanup and disposal organs, as well as the qualifications of the specialized technical personnel.  Although the said enabling provision did not specify the content and scope of the qualifications of the specialized technical personnel, it should be reasoned, based on construction of the law on the whole, that the lawmakers’ intent was to delegate the power to the competent authority to decide not only on the qualifications of the specialized technical personnel, but also on such matters as the supervision of how said technical personnel should properly perform their duties, so as to fulfill the authorized purposes of effectively supervising and assisting the public and private waste cleanup and disposal organs.
      
    •        Pursuant to the aforesaid authorization, the Environmental Protection Administration, Executive Yuan, formulated and issued the Regulation on the Supervision of and Assistance to Public and Private Waste Cleanup and Disposal Organs (abolished) on November 19, 1997.  Article 31 (i) thereof provided, “In circumstances where the disposal organs broke the law or operated improperly, thus seriously polluting the environment or jeopardizing human health, the competent authority shall revoke the certificates of qualification for the cleanup or disposal technicians hired by such organs.”  The said provision refers to such circumstances where the waste cleanup or disposal organs broke the law or operated improperly so as to seriously pollute the environment or to jeopardize human health, for which the competent authority shall revoke the certificates of qualification for the cleanup or disposal technicians within the scope of their employment and duty.  Thus it does not go beyond the scope of authorization mandated by Article 21 of the said Waste Disposal Act.  Instead, it is an effective method of improving environmental sanitation and preserving the public health by means of achieving the authorized purposes of effectively supervising and assisting the public and private waste cleanup and disposal organs.  The restrictions imposed on the people’s right of work do not go beyond the necessary extent, and are not only consistent with the provisions of Article 23 of the Constitution, but also in line with the intent of Article 15 thereof.
      
  • Reasoning
    •        Article 15 of the Constitution provides that the people’s right of work shall be guaranteed; that is, the people have the freedom to work and choose their occupations.  In order to promote public interests, restrictions may be imposed by law or orders as delegated by law on the means of engaging in work and on the necessary qualifications or other requirements to the extent that they are in line with Article 23 of the Constitution.  Where the law delegates the power of issuing orders to the competent authority for the purpose of making supplementary provisions, the contents thereof shall be in line with the legislative intent, and shall not go beyond the scope of the enabling statute.  As has been made clear by this Court in its previous interpretations, where an order is issued under the general authorization of the enabling statute, a comprehensive judgment shall be made in respect of the legislative purposes of the law itself and the associated meanings of the provisions on the whole, instead of adhering to the letter of the law, so as to determine whether it goes beyond the scope of legal authorization or not.
      
    •        In the light of the prosperous development of businesses and industries, the expansion of industrial production, the complexity of materials used, and the frequent elimination and replacement of products, the amount and variety of waste have become overwhelming, much of which is polluting and noxious, and requires the handling by specialized waste cleanup and disposal organs and personnel so as to prevent environmental pollution and to forestall the damage to public health and the environment.  In order to ensure that the tools, methods, equipment and places used by a private waste cleanup and disposal organ to dispose of the waste meet technological and professional demands, Article 15-I of the Waste Disposal Act as amended and promulgated on April 9, 1980, added a provision requiring the placement of specialized technical personnel, which read, “A private waste disposal organ shall first effect the registration for an industry or a business, then specify its specialized technical personnel and the tools, methods, equipment and places for cleanup, disposal and storage, and last apply to the local competent authority for the issuance of a license before it can be commissioned to clean up and dispose of waste.”  With regard to the qualifications of specialized technical personnel, a second paragraph was added to the aforesaid article to bring the provincial and municipal standards into agreement, which read, “The qualifications of the specialized technical personnel mentioned in the preceding paragraph shall be prescribed by the central competent authority.”  The aforesaid Article 15-I of the Waste Disposal Act was subsequently amended and rearranged as the first part of Article 20 on November 20, 1985. Furthermore, as it was found necessary to revise and augment the regulations regarding the supervision of and assistance to public and private waste cleanup and disposal organs so as to more effectively supervise and assist the same, the aforesaid Article 15-II of said Act was amended and rearranged as Article 21 thereof, which read, “The central competent authority shall prescribe the regulations governing the supervision of and assistance to public and private waste cleanup and disposal organs, as well as the qualifications of the specialized technical personnel, mentioned in the preceding article” (hereinafter referred to as Article 21 of the former Waste Disposal Act).  The provisions of the first part of Article 20 mentioned above were further amended on November 11, 1988, which read, “A public or private waste cleanup and disposal organ shall, in operating the business of waste storage, cleanup or disposal, specify its specialized technical personnel and the tools, methods, equipment and places for storage, cleanup and disposal, and apply to the local competent authority for the issuance of a license” (hereinafter referred to as the first part of Article 20 of the former Waste Disposal Act).  Although the aforesaid provisions of the first part of Article 20 and Article 21 of the former Waste Disposal Act imposed restrictions on the operators of public and private waste cleanup and disposal organs and their specialized technical personnel’s right of work, and conditioned the operation of the said business on the specifications of the specialized technical personnel, such restrictions were indeed rightfully imposed because, considering the fact that specialized waste treatment and disposal is essential in a modern industrialized nation for the prevention of environmental pollution and the occurrences that may jeopardize the public health and the environment, and that, once the damage is done, the negative effects may well last for generations to come and recovery is hardly likely, post facto punishment will not be the most effective means of achieving the legislative purpose of preventing environmental pollution.
      
    •        Article 21 of the former Waste Disposal Act provided, “The central competent authority shall prescribe the regulations governing the supervision of and assistance to public and private waste cleanup and disposal organs, as well as the qualifications of the specialized technical personnel, mentioned in the preceding article.”  Although the said enabling provision did not specify the content and scope of the qualifications of the specialized technical personnel, the intent of the Waste Disposal Act, in providing for the placement of specialized technical personnel, was to ensure that public and private waste cleanup and disposal organs, in operating the business of waste storage, cleanup or disposal, meet technological and professional demands.  Therefore, it should be reasoned, based on construction of the law on the whole, that the lawmakers’ intent was to delegate the power to the competent authority to decide not only on the qualifications of the specialized technical personnel, but also on such matters as the supervision of how said technical personnel should properly perform their duties, so as to fulfill the authorized purposes of effectively supervising and assisting the public and private waste cleanup and disposal organs.
      
    •        Pursuant to Article 21 of the former Waste Disposal Act, the Environmental Protection Administration, Executive Yuan, formulated and issued the Regulation on the Supervision of and Assistance to Public and Private Waste Cleanup and Disposal Organs on November 19, 1997 (hereinafter referred to as the Former Regulation on Supervision and Assistance, which was abolished on October 9, 2002).  Article 14 thereof provided, “A cleanup and disposal technician shall engage in the practice of waste cleanup and disposal only after he or she obtains a certificate of qualification issued by the competent authority (Paragraph I).  A cleanup and disposal technician, in engaging in the practice of waste cleanup and disposal, shall be responsible for the normal operation of the cleanup and disposal organ that hires him or her and the resolution of the technical issues relating to waste cleanup and disposal, and shall review the applications for relevant licenses, periodic monitoring reports, contracts, delivery slips and operation records and affix his or her signature and seal thereto after making sure that the contents thereof are true and correct (Paragraph II).”  Furthermore, the placement of specialized technical personnel is a prerequisite to the application for the issuance of a license or for the extension of the validity of the license by public and private waste cleanup and disposal organs (See Article 20 of the former Waste Disposal Act, Articles 5 and 12 of the Regulation on the Supervision of and Assistance to Public and Private Waste Cleanup and Disposal Organs as amended and issued on August 5, 1998, and Article 7 thereof as amended and issued on June 29, 1999).  Accordingly, in line with Article 14-II of the aforesaid Former Regulation on Supervision and Assistance, a waste cleanup and disposal technician who is employed by a cleanup and disposal organ shall be responsible for the normal operation of the organ, resolution of the technical issues relating to waste cleanup and disposal, and shall review relevant documentation, thus shouldering the heavy responsibility of making sure that the organ is able to effectively clean up and dispose of waste, so as to prevent environmental pollution and to forestall any damage to the public health and the environment.  As such, Article 31 (i) of the Former Regulation on Supervision and Assistance provided, “In circumstances where the cleanup or disposal organs broke the law or operated improperly, thus seriously polluting the environment or jeopardizing human health, the competent authority shall revoke the certificates of qualification for the cleanup or disposal technicians hired by such organs.”  The said provision refers to such circumstances where the waste cleanup or disposal organs broke the law or improperly operated so as to seriously pollute the environment or to jeopardize human health, for which the competent authority shall revoke the certificates of qualification for the cleanup or disposal technicians within the scope of their employment and duty.  Thus it does not go beyond the scope of authorization mandated by Article 21 of the said Waste Disposal Act, which dictates how specialized technical personnel should properly perform their duties.  Furthermore, the provision is intended to urge waste cleanup and disposal technicians not only to possess the requisite professional skills, but also to carry out their duties faithfully.  As such, it is an effective method of improving environmental sanitation and preserving the public health by means of achieving the authorized purposes of effectively supervising and assisting the public and private waste cleanup and disposal organs as contemplated by Article 21 of the aforesaid Waste Disposal Act.  In addition, where a waste cleanup and disposal technician’s certificate of qualifications is revoked on the condition that the waste cleanup and disposal organ which hired him or her was in violation of the law or operating improperly, thus seriously polluting the environment or jeopardizing human health, a justifiable and rational basis may be found between the achievement of the regulatory end and the means of revoking an incompetent cleanup and disposal technician’s certificate of qualifications after taking into account the tremendous negative impact that such action will exert on the environmental sanitation and public health, as well as the extent and type of legally protected interests that will be violated.  Therefore, there is no violation of the principle against irrational basis.  The restrictions do not go beyond the necessary extent, and are not only consistent with the provisions of Article 23 of the Constitution, but are also in line with the intent of Article 15 thereof, which guarantees the right of work.
      
    • *Translated by Vincent C. Kuan.
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