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  • Interpretation
  • No.633
  • Date
  • 2007/09/28
  • Issue
    • Are certain provisions of the Act of the Special Commission on the Investigation of the Truth in Respect of the 319 Shooting, as amended on May 1, 2006, unconstitutional?
  • Holding
    •        Article 4-II, Article 8, Article 8-1, Article 8-2-I, II and III regarding reports and public announcements; Article 8-2-V and VI, Article 8-3, and Article 11-II regarding secondment of officials from administrative organs; Article 11-IV and Article 15-I of the Act of the Special Commission on the Investigation of the Truth in Respect of the 319 Shooting (hereinafter the “SCITA”), as amended on May 1, 2006, are in line with the Constitution and J.Y. Interpretation No. 585.
      
    •        Article 8-2-III regarding pecuniary fines and Article 8-2-IV are contrary to the intents of J.Y. Interpretation No. 585.  Article 11-III is contrary to the principles of separation of powers and checks and balances, and shall become null and void as of the date of the promulgation hereof.
      
    •        As to the petition for preliminary injunction regarding the aforesaid provisions of the SCITA, it is no longer necessary to examine the petition since an interpretation has been given for the case on merit.  In addition, since the petition for the interpretation of the other provisions of the SCITA has been rejected, the petition for preliminary injunction regarding such provisions shall not be reviewed.
      
  • Reasoning
    •        The Legislative Yuan’s investigation power is a subsidiary power necessary for the said Yuan to exercise its constitutional powers and authorities. The exercise of such power should be carried out by the Legislative Yuan through establishing an investigation commission pursuant to law. Only in extraordinary cases may the Legislative Yuan mandate non-members of the Legislative Yuan to assist in the investigation of any particular matters by enacting a special law, setting forth in detail the purposes of the mandate, the scope of the investigation, the matters relating to personnel and organization, including, without limitation, the qualifications, appointment, term of the mandated persons, the authorities, methods and procedures for the special investigation, which law would also serve as the basis of supervision. The aforesaid has been made clear in J.Y. Interpretation No. 585 by Judicial Yuan. The Legislative Yuan enacted and amended the SCITA and established the Special Commission on the Investigation of the Truth in Respect of the 319 Shooting (hereinafter the “SCIT”) thereunder. The SCIT was created in an attempt to ascertain the truth about the circumstances of the shooting candidates for President and Vice President on March 19, 2004 (hereinafter the “319 Shooting”) for the purpose of appeasing contestation arising from the dispute over the results of the presidential election and settling political turmoil (See Article 1-I of the SCITA). The SCITA is a special statute that the Legislation Yuan mandated non-members to assist the investigation into the specific circumstances of this extraordinary case. The petition of this Interpretation asserts the unconstitutionality of Articles 4-II, 8, 8-1, 8-2, 8-3, and 11-II regarding the secondment of officials from administrative organs, and Articles 11-III, 11-IV, and 15-I of the SCITA (hereinafter the “Disputed Provisions”). It is therefore the decision of the Judicial Yuan to review whether the organization, authorities, methods, procedures and compulsory measures for the SCITA described in the Disputed Provisions are contrary to the intents of J.Y. Interpretation No. 585, i.e., whether they are in violation of the principles of separation of powers and checks and balances, principle of proportionality, principle of clarity and definiteness of law and due process of law as set forth by the Constitution. The petition is hereby analyzed below.
      
    •        1. The Organization of the SCIT
      
    •        (1) Article 4-II of the SCITA is not beyond the scope of intents of J.Y. Interpretation No. 585
      
    •        The SCIT is a temporary special commission, which was created by the Legislative Yuan because of extraordinary necessity, with an attempt to ascertain the truth regarding the 319 Shooting for the purpose of appeasing contestation arising from the dispute over the results of the presidential election and settling political turmoil; it consists of non-members of the Legislative Yuan who shall be fair and impartial in sharing their professional knowledge to assist the said Yuan in exercising its investigation power. Article 4-II of the SCITA provides that, “[a]ny action, conducted by this Commission pursuant to the SCITA, may be taken in the name of the Commission. The Commission has the power to sue and can also be sued.” The said provision is an extraordinary legislation created out of special necessity for establishing the SCIT by the Legislative Yuan and is not beyond the scope of intents of J.Y. Interpretation No. 585.
      
    •        (2) Article 11-II of the SCITA regarding secondment of officials from administrative organs is not in conflict with the Constitution. Article 11-III of the SCITA is contrary to the principles of separation of powers and checks and balances.
      
    •        Article 11-II of the SCITA provides that, “[t]he convening member of the Commission may retain 3 to 5 consultants and may designate, second or contract appropriate persons as assistant investigators.” The said provision is consistent with Articles 18, 22 and 36 of the Public Service Personnel Employment Act regarding employment, and such provision regarding secondment of officials from administrative organs is not in conflict with the Constitution. However, Article 11-III of the SCITA provides that, “[a]n administrative organ has no right to refuse the secondment ordered pursuant to the preceding paragraph.” The provision means that if a convening member of the SCIT requests the secondment of an appropriate person from an administrative organ as an assistant investigator, the said administrative organ has no right to refuse such secondment. The SCIT is a temporary extraordinary commission under the authority of the Legislative Yuan in exercising investigation power and it is appropriate to have secondment from administrative organs of persons who are to act as assistant investigators. However, pursuant to the principles of separation of powers and checks and balances and in order to show respect to the administrative organs and the seconded persons, such secondment shall be consented to by the seconded persons and the administrative organs, which has been explained in J.Y. Interpretation No. 585. Hence, the aforesaid paragraph 3 of Article 11 regarding secondment of officials from administrative organs is contrary to the intents of J.Y. Interpretation No. 585.
      
    •        (3) Article 15-I of the SCITA is in line with the Constitution.
      
    •        Members of the SCIT are recommended and invited to be members by the Legislative Yuan pursuant to Article 2-I and II of the SCITA. The said members accept the appointments of the said Yuan to conduct an investigation of the 319 Shooting and its associated incidents, which occurred before and after the 319 Shooting, to ascertain the truth in connection with the mastermind and other related persons’ motives, the purposes, facts, and effects of said Shooting (See Article 7 of the SCITA). Based upon representative politics and the principle of accountability politics, the Legislative Yuan shall take political responsibility for the outcome of exercising investigation power, and the people will determine whether it has abused its power. Hence, the Legislative Yuan has the duties of directing and supervising members of the SCIT. Any member of the SCIT who is deemed incompetent may be expelled from his or her office by a resolution of the Legislative Yuan. Furthermore, Article 15-I of the SCITA provides that, “[a]ny member of this Commission who has lost legal capacity or is in violation of laws and/or regulations may be expelled from his or her office by resolutions of the Legislative Yuan.” The said provision enables the Legislative Yuan to perform its duties of directing and supervising members of the SCIT and is in line with the aforesaid intents. In addition, members of the SCIT shall be non-partisan and shall exercise their powers without any prejudice in accordance with laws (See Article 4-I of the SCITA). In the event that the eligibility or impartiality of members of the SCIT in exercising their powers is prejudiced because of violation of laws, any member of this Commission who is incompetent may be expelled from his or her office by resolutions of the Legislative Yuan as a result of exercising the said Yuan’s duties of directing and supervising. The contents of Article 15-I can be ascertained in accordance with social norms and be established by judicial review. Therefore, this provision is in line with the intents of J.Y. Interpretation No. 585 and does not conflict with the principle of clarity and definiteness of law.
      
    •        (4) Article 11-IV of the SCITA is in line with the Constitution if applicable laws and regulations concerning budgets are complied with.
      
    •        The SCIT is a temporary special commission subordinate to the Legislative Yuan for exercising investigation power and its operational expenses shall be met from the budget proposed by the said Yuan. However, if there is factual necessity and relevant laws and regulations concerning budgets are complied with, the said Yuan is entitled to use the second reserves pursuant to law without any violation of executive powers of the Executive Yuan, which is explained in J.Y. Interpretation No. 585. Article 11-IV thereof provides that, “[t]he funds required by this Commission shall be met by the budget of the Legislative Yuan. Whenever necessary, the funds may be met by the second reserves of the Executive Yuan, and the Executive Yuan shall have no objection.” Based upon the intents of J.Y. Interpretation No. 585, as long as all applicable laws and regulations concerning budgets are complied with, there is no violation of the Constitution.
      
    •        2. The Scope, Methods, Procedures and Compulsory Measures for the SCIT in Exercising the Investigation Power
      
    •        As stated above, the purpose that Legislative Yuan enacted and amended the SCITA and creates the SCIT thereby is to ascertain the truth about the circumstances of the 319 Shooting in order to appease contestation arising from the results of the presidential election and settle political turmoil. To attain such purposes, the said Yuan is entitled to delegate its investigation power regarding the 319 Shooting and its associated incidents to the SCIT or members of the SCIT, which is prescribed in the SCITA. However, since the SCIT is a temporary special commission and is subordinate to the Legislative Yuan for exercising investigation power, the SCIT’s authority shall be limited to the scope of investigation power exercised by the said Yuan and shall be restricted to the scope of the investigation of the truth about the circumstances of the 319 Shooting. If any procedure of any investigation method is implicated as limiting the fundamental rights of the people as protected by the Constitution, such procedure shall be in conformity with the principle of proportionality, the principle of clarity and definiteness of law and due process of law as set forth by the Constitution, which is explained in J.Y. Interpretation No. 585.
      
    •        (1) Article 8 of the SCITA is in line with the Constitution.
      
    •            Article 8-1 of the SCITA provides that, “[t]his Commission or members of this Commission is/are entitled to do the following at the time of investigation in accordance with this Act: 1. Give notice to related organs, groups, business entities or individuals to appear to testify or to make statements in person; 2. Give notice to related organs, groups, business entities or individuals to submit relevant files, documents and other necessary data or evidence. However, permission to borrow such relevant materials during the trial shall be obtained from such trial court; 3. Appoint personnel to the office premises, firms, business premises or other premises of related organs, groups, business entities or individuals to conduct necessary investigation or inspection; 4. Appoint investigators; 5. Appoint different organs to investigate the specified cases or items, if necessary; 6. Conduct other necessary investigation.” In addition, Article 8-II of the SCITA provides that, “[e]very organ shall conduct investigations and reply in writing after such appointment in Item 5 of the preceding paragraph is accepted.” These two Articles are two effective measures to obtain related information regarding the truth about the circumstances of the 319 Shooting for the purpose of appeasing contestation arising from the results of the presidential election and settling political turmoil, which are different from compulsory search and seizure, and are not beyond the scope of the SCIT, nor are they in violation of the principles of separation of powers and checks and balances set forth by the Constitution. These two Articles are in conformity with the intents of J.Y. Interpretation No. 585. The SCIT shall exercise its powers by joint decision of its members, which means a member of the SCIT may exercise his/her investigation power, provided that the objective of investigation he/she proposes is reviewed and agreed upon by the other four members of the SCIT. The outcome of such investigation shall be handled in conformity with Article 6 of the SCITA and a member shall not publish nor deliver any comment to the public in respect of such outcome (See Article 5 of the SCITA), which is not in violation of the intent of exercising powers collectively. Moreover, Item 2 of Article 8-I provides that permission to borrow relevant materials during a trial shall be obtained from such trial court, which is a necessary provision to protect trial power independently exercised by a court pursuant to the law. Where a State organ exercises its power independently, it shall not fall under the scope of the Legislative Yuan’s investigation power. The aforesaid is explained in J.Y. Interpretation No. 585. Therefore, it is clear that the request for documents or evidence by the abovementioned organs shall be granted by every such independent organ. The inspection set forth in Item 3 of Article 8-I is the Legislative Yuan’s investigation power and such power is used to obtain evidence and documents. Such procedure is carried out in conformity mutatis mutandis with related provisions of the Administrative Procedure Act. The aforesaid power differs from judicial investigation power. Item 6 of Article 8-I regarding “other necessary investigation” is a general provision to supplement Items 1 to 5 thereof. The said Item shall be construed to the extent similar to the investigation conducts provided in Items 1 to 5 of the SCITA. The meaning of this item is not difficult to realize, is foreseen by the regulated people and can be established by judicial review. Hence, the aforesaid Item is in line with the principle of clarity and definiteness of law. In addition, Article 8-III provides that, “[i]nvestigation personnel of the SCIT who exercise power and authority pursuant to law shall present related evidence of appropriate authority. The investigated person is entitled to reject such investigation, provided that no evidence is presented.” Further, Article 8-IV provides that, “[a]t the time of exercising investigation power by the SCIT or members of the SCIT, unless otherwise provided for herein, related procedure protection shall be carried out in conformity mutatis mutandis with related provisions of the Control Act.” The aforesaid two Articles are procedure provisions to protect investigated persons; further, such Articles do not exclude procedure protection for investigated persons under current laws; hence they are in line with the Constitution and the intents of J.Y. Interpretation No. 585.
      
    •        (2) Article 8-1 of the SCITA is in line with the Constitution and the intents of J.Y. Interpretation No. 585
      
    •            Article 8-1-I of the SCITA provides that, “[i]nvestigation personnel of the Commission are entitled to seal up related certificates or documents for safekeeping, or take away, take possession of all or part of such certificates or documents, if necessary.” Article 8-1-II thereof provides that, “[w]hen sealing up, taking away or taking possession of certificates or documents possessed by organs, the consent of their chief official is required. Unless it is proved that there is any interference with the State’s material interest and an investigation is consented to by an administrative court with a provisional disposition order within seven days from the investigation day, the said chief official shall not reject such investigation.” Article 8-1-III thereof provides that, “[t]he certificates that are taken away shall have stamps affixed to them by the said chief official and the investigation personnel shall provide receipts for such certificates.” The aforesaid Articles are effective measures to obtain related information regarding the truth of the 319 Shooting. In addition, according to Article 8-1-II, if the investigated organ rejects the request by the investigation personnel to seal up the certificates for safekeeping, take away or take possession of the certificates or documents with the reason of interference with the State’s material interest, the said organ shall apply for a provisional disposition order with the administrative court within seven days from the investigation day. Moreover, whether an exception thereof exists can be confirmed by filing a confirmation suit in accordance with Article 8-2-V. The aforesaid Articles thereof expressly provide feasible requirements for the organ’s chief official to reject the request that such certificates or documents be sealed up for safekeeping, taken away and taken into possession. The abovementioned conducts differ from compulsory search and seizure, are not beyond the scope of the Legislative Yuan’s investigation power and principles of separation of powers and checks and balances, and are in line with the Constitution and the intents of J.Y. Interpretation No. 585. In addition, such certificates or documents so sealed up, taken away or taken into possession shall be limited to the scope of related and necessary investigation, which may be reviewed by a court.
      
    •        (3) Article 8-2-I, II, and III regarding reports and promulgations, V, and VI are in line with the Constitution and the intents of J.Y. Interpretation No. 585. However, Article 8-2-III regarding pecuniary fines and IV are in conflict with the intents of J.Y. Interpretation No. 585.
      
    •            Article 8-2-I provides that, “[t]he authority and power exercised by the SCIT and members of the SCIT shall comply with due process of law and conduct in conformity with the principle of proportionality.” This Article intends to protect the procedural interest of the investigated persons, which is in line with the Constitution and the intents of J.Y. Interpretation No. 585. Article 8-2-II provides that, “[n]o related organs, organizations, enterprises or persons to be investigated shall avoid, delay or reject such investigation for any reason, unless it is proved that any interference with the State’s material interest or any risk of criminal or administrative punishments may occur due to the investigated organ’s cooperation.” This Article empowers the SCIT as a compulsory authority at the time of the investigation and approves feasible reasons offered by the investigated persons to refuse investigation, which is not beyond the scope of the Legislative Yuan’s investigation power. In order to exercise its investigation power effectively, the Legislative Yuan may, by resolution of its plenary session, impose reasonable pecuniary fines upon those who refuse to fulfill their obligations to assist in the investigation, which is a power ancillary to the Legislative Yuan’s investigation power. This has been explained clearly in J.Y. Interpretation No. 585. Article 8-2-III thereof provides that, “[i]n case of violation of the preceding provision hereof, successive fines shall be imposed on such investigated persons, in addition to their being reported to the Legislative Yuan and being named in a public announcement.” The part of this Article regarding the SCIT’s power to impose pecuniary fines is not in line with the intents of J.Y. Interpretation No. 585. Hence, Article 8-2-IV which provides that, “[r]egarding the pecuniary fines mentioned in the preceding provision, they shall be in conformity with the Administrative Procedure Act and the Administrative Enforcement Act” shall likewise be considered null and void. However, in regard to the investigated persons’ violative conducts mentioned in Article 8-2-II, the SCIT shall report such violative conducts to the Legislative Yuan and announce to the public, which provision will be helpful in ascertaining the truth and therefore is permissible. In addition, Article 8-2-V and VI separately provide that, “[w]hether exceptions to Article 8-2-II and Article 8-1-II exist or not, the investigated persons may file a confirmation suit with the administrative court located in the district of the SCIT if any controversy arises. Every instance of administrative court shall deliver its judgment within three months after accepting such filing.” “The confirmation suit mentioned in the preceding Paragraph is carried out in conformity with the Administrative Litigation Act.” These two Articles specifically stipulate that if the aforesaid investigated organs prove that any interference with the State’s material interest exists and refuse to allow certificates or documents to be sealed up for safekeeping, taken away or taken into possession, or if the aforesaid investigated persons prove that any interference with the State’s material interest exists or is under risk of criminal or administrative punishments due to the investigated person’s cooperation and thus attempt to avoid, delay or refuse to cooperate with the investigation, and if any controversy arises thereof, the investigated organ or person is entitled to file a confirmation suit and resolve such controversy in conformity with the Administrative Litigation Act, which is a reasonable solution and is in line with the Constitution. Moreover, it should be pointed out that before the confirmation suit is concluded, it can not be known whether the investigated person has violated his/her duty to assist with the investigation, and therefore, any punishment or pecuniary fine shall not be imposed by the SCIT.
      
    •        (4) Article 8-3 is in line with the Constitution and the Intents of J.Y. Interpretation No. 585
      
    •            Article 8-3 of the SCITA provides that, “[i]nvestigation personnel of the Commission are entitled to ask the local government, investigating and prosecuting organs or other related agencies to provide assistance, if necessary.” “If the investigation personnel encounter resistance at the time of evidence investigation or conservation of evidence, they are entitled to request the military police or police to provide assistance for necessary measures.” The Legislative Yuan’s investigation power is a subsidiary power necessary for the said Yuan to exercise its constitutional powers and authorities. The investigation personnel of the SCIT exercise the Legislative Yuan’s investigation power to ascertain the truth of the 319 Shooting and can ask the aforesaid organs to provide assistance, if necessary. Due to the mutual respect between organs, if the said organ agrees to provide assistance, it shall not mean the SCIT directs or commands the said organ. Therefore, there is no violation of the principle of separation of powers.
      
    •        3. Conclusion
      
    •        (1) Article 4-II, Article 8, Article 8-1, Article 8-2-I, II and III regarding reports and public announcements; Article 8-2-V and VI, Article 8-3, Article 11-II regarding secondment of officials from administrative organs; Article 11-IV and Article 15-I of the SCITA are in line with the Constitution and J.Y. Interpretation No. 585.
      
    •        (2) Article 8-2-III regarding pecuniary fines and Article 8-2-IV are contrary to the intents of J.Y. Interpretation No. 585. Article 11-III is contrary to the principles of the separation of powers and checks and balances, and shall become null and void as of the date of the promulgation hereof.
      
    •        (3) In respect of the Articles of the SCITA other than the Disputed Provisions (hereinafter the “Other Articles”), which the Petitioners also assert are in violation of the Constitution, the Petitioners have failed to indicate the specific reasons for unconstitutionality. Therefore, the aforesaid portion of the petition is contrary to Item 3 of Article 5-I of the Constitutional Interpretation Procedure Act and is hereby rejected in accordance with Article 5-III of the same Act.
      
    •        (4) As to the petition for preliminary injunction regarding the Disputed Provisions of the SCITA, it is no longer necessary to examine the petition since an interpretation has been given for the case on merit. In addition, since the petition for the interpretation of Other Articles of the SCITA has been rejected, the petition for preliminary injunction regarding the Other Articles shall not be reviewed.
      
    • *Translated by Chun-yih Cheng and Pei-chen Tsai. 
      
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