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  • Interpretation
  • No.704【The protection of the status of a military judge who applies to voluntarily remain in military camp】
  • Date
  • 2012/11/16
  • Issue
    •        Is it unconstitutional that the post of a military judge who has not yet reached the maximum number of years (or age) for military service should be ruled by the Procedure for Approval of Voluntarily Remaining in Camp and the Regulations for Exemption from Drafting upon Completion of Military Service?
  • Holding
    •        That Article 7 of the Regulations of Military Service for Selecting Voluntary Personnel as Officers and Noncommissioned Officers of the Armed Forces, as amended on November 27, 2002—All articles were subsequently amended and promulgated on November 13, 2006, but the said article number and contents remain unchanged— with regard to Standing Officers on Reserve Service, who join the camp voluntarily, on completion of military service, yet are willing to continue, by which they shall observe the rules applying to persons who voluntarily remain in camp, including the procedural norms for approval, should apply to those military judges who voluntarily join the service after passing the Special Examination by the Ministry of Examination, but have yet to receive approval for service up to the maximum number of years (or age) and Article 17 of the Act of Military Service for Officers and Noncommissioned Officers of the Armed Forces, concerning exemption from drafting upon completion of military service should apply to the afore-mentioned situation does not conform to the adjudicative independence of a tribunal established by judicial authority on constitutional principles, or to the right to institute legal proceedings as safeguarded by Article 16 of the Constitution, and so, from the date of the publication of this Interpretation to a maximum of two years, the said provisions shall become inapplicable to the foregoing military judges. 
      
    •        To protect the status of the said military judges, the relevant competent authority shall, within the prescribed period, amend the pertinent laws and regulations in compliance with this Interpretation, and clearly stipulate the selection standards for the foregoing military judges, who voluntarily remain in camp, and the due process of law to be followed
      
  • Reasoning
    •        The functioning of military tribunals, which are one kind of national criminal law authority, is judicial in nature. The initiation of proceedings and running of this judicial authority should conform to the minimum requirements of due legal process, including such matters as there being an independent and impartial legal body and process. Furthermore, it should not infringe Article 80 or other relevant provisions in the Constitution that deal with the constitutional origin on which the judicial authority is founded (cf. J.Y. Interpretation No. 436). However, it is not necessary that judges be in a position of lifetime tenure (cf. J.Y. Interpretation No. 601). Just as the guarantees given to judges are not the same as those for ordinary civil servants, so too the guarantees offered to military judges should differ from those applicable to ordinary military officers. To ensure that the judicial action of a military judge is undertaken solely on the basis of his/her conscience and an independent ruling based on the law, such that military persons in current service may receive an independent and fair trial as guaranteed by article 16 of the Constitution dealing with the right to institute legal proceedings, no military judge shall be removed from office unless he or she is guilty of a criminal offense or subject to disciplinary action, or declared to be under supervision, or to be in receipt of other legal measures equivalent to criminal conviction, disciplinary sanction or supervision, nor according to due legal process may he/she be removed from office. Unless the law provides otherwise, he/she may not be suspended, transferred or have his/her emolument annulled. These are important components of the principles founding judicial authority.
      
    •        As amended and promulgated on November 27, 2002, Article 7 of the Regulations of Military Service for Selecting Voluntary Personnel as Officers and Noncommissioned Officers of the Armed Forces (hereafter referred to as the “Military Service Regulations”) states that: “An Officer on Reserve Service … who voluntarily joins the camp for service may serve within the term of service, which is three years per term. Yet a Standing Officer on Reserve Service… who seeks to reapply to enter the camp after completing the period of service should apply to continue to serve. Once approved, he/she may continue to serve up to the maximum number of years or up to the age limit (Paragraph 1). Persons coming under the above paragraph who apply to continue to serve on completion of their term shall follow the provisions of these Regulations regarding voluntarily remaining in military camp. (Paragraph 2)” (All articles as amended on November 13, 2006, but the said article number and contents remain unchanged; hereinafter referred to as the “Disputed Provision I”). According to this regulation, (with reference to Point 13.6 of the Operating Regulations of Military Service for Selecting Voluntary Personnel as Officers, Noncommissioned Officers and Soldiers of the Armed Forces; hereafter referred to as the “Service Operating Regulations”) Standing Officers on Reserve Service who apply to voluntarily join the camp, and are accepted, will fulfill a term of service of three years. Upon the completion of the three-year term they may re-apply to voluntarily remain in camp. If accepted they then may continue to service up to the maximum number of years (or age). Reserve Officers who apply to voluntarily join the camp, and who are accepted, after completion of their three-year term of service are still required to re-apply to voluntarily remain in camp. On acceptance they may begin to continue to serve for one, two or three years according to the time period permitted (cf. Article 4 of the Military Service Regulations). Upon completion of the agreed term, they shall re-apply to voluntarily remain in camp, until they have completed a total of six years voluntary service (cf. Article 22 of the Act of Military Service for Officers and Noncommissioned Officers of the Armed Forces; hereafter referred to as the “Military Service Act”), they will thereafter be qualified to serve as Standing Officers on Reserve Service, and continue to service up to the maximum number of years (or age). Therefore, officers who have not yet served up to the maximum number of years (or age), and who wish to retain their military post are required to apply to voluntarily remain in camp, by filling out the form “Officers and Soldiers applying to Voluntarily Remain in Military Camp”. Having passed an initial examination by the political warfare chief or officer of their physical health, service rating and appraisal, level of education, rank, the requirements of their post, the number of persons required and an intelligence test (cf. Articles 3 and 5 of the Military Service Regulations) and upon passing a higher examination by the security officer or head of personnel, they may be accepted by a departmental supervision head with a rank no lower than that of a lieutenant-general (cf. Article 5 of the Military Service Regulations, Points 12.1 and 12.3 of the Service Operating Regulations and their appendix, “Officers and Soldiers applying to Voluntarily Remain in Military Camp”). For those applicants who do not receive approval to remain in camp, Article 17 of the Military Service Act will apply, which states: “A Standing Officer on Reserve Service … or Reserved Officer Service, who submits an application for active service, upon the completion of the term of re-service …, will be discharged from service” (hereinafter referred to as the “Disputed Provision II.” The above-mentioned article is applicable mutatis mutandis to reserve officers, cf. Article 21 of the Military Service Act). Furthermore, the said officer will be discharged from active service according to Article 9, Subparagraph 1 of the Act of Assignment for Officers and Noncommissioned Officers of the Armed Forces.
      
    •        The Disputed Provision I and Disputed Provision II are also applicable to military judges who voluntarily join the service after passing the Special Examination set by the Ministry of Examination, but have yet to receive approval for active service up to the maximum number of years (or age). (Military judges of this disputed category are hereafter referred to as “military judges”.) They are not to be granted special consideration due to their status as judges. Whether a military judge may continue at his or her adjudicative post depends on the approval of the officer in charge of applications to remain in camp voluntarily. Moreover the grounds for making an assessment as to whether the person may continue to remain in camp, except in the case where the procedure does not follow the norms of the committee for fairness by which a military judge has an opportunity to appeal according to due process of law (cf. J.Y. Interpretation No. 491), are to follow the norms for selection and may mean that the judge is not permitted to continue in his/her post even if he/she is not guilty of a criminal offense nor subject to disciplinary action, nor declared to be under supervision, nor to be in receipt of other legal measures equivalent to criminal conviction, disciplinary sanction or supervision, nor found by due process of law to be lacking educational qualifications, dedication to work, due quality of judgment or suitable moral conduct which might otherwise serve as a cause for determining incapacity for service as a military judge and so preventing the judge from continuing in office. Consequently, the status of military judge is never to be taken for granted. The Disputed Provision I regarding a military judge of the Reserved Officer Service who, on completion of his/her period of service voluntarily applies to serve in the active service, should make use of that section which relates to military judges, following the norms for approval in the above process. The Disputed Provision II regarding the exemption from drafting granted to persons who have fulfilled their active service, when used for the above does not conform to the constitutionally guaranteed independence of judicial judgment nor to the meaning of Article 16 of the Constitution guaranteeing people’s right to institute legal proceedings.Therefore, from the date of publication of this Interpretation to a maximum of two years, the said provisions shall become inapplicable to military judges. To guarantee the status of military judges, the relevant authority shall within the prescribed period amend pertinent laws in compliance with the meaning of this Interpretation, and clearly stipulate both the selection standards for military judges who voluntarily remain in camp, and the due process of law to be followed.
      
    •        The petitioner in this case raised[has] another matter regarding qualification screening, alleging that in the Supreme Administrative Court, 96-Tzai-Tze No. 3189 (2007), the Court applied Articles 23 and 24 of the Military Justice Act and Article 9 of the Regulations for Special Examination for Military Judges (as amended and promulgated July 14, 2000) (hereinafter collectively referred to as the “Disputed Provisions III”), to be in violation of Articles 77, 85, 86 and 140 of the Constitution. It should be noted that in the above-referenced Supreme Administrative Court decision, the petitioner’s appeal against the Taipei High Administrative Court, 94-Tsu-Tze No. 3084 (2005) was dismissed since the said appeal was not in conformity with the law. Hence, the above Taipei High Administrative Court ruling shall be the final and binding judgment. Upon the review of allegations therein, the petitioner argued that the said Court should decide whether it is right to give military accreditation to military judges who voluntarily join the camp having passed the Special Examination of the Ministry of Examination. It is hard to say that the petitioner has objectively or substantively pointed out any contravention of the Constitution by asserting the Disputed Provisions III. Since this petition is not in conformity with the requirements set out in Article 5, Paragraph 1, Subparagraph 2 of the Constitutional Interpretation Procedure Act, this petition shall be dismissed pursuant to the same Article, Paragraph 3 thereof.
      
    • ______________________
      
    • * Translated by Spenser Y. HOR, Esq. and Chien Yeh Law Offices.
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