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  • Interpretation
  • No.734【Recognizing placement of advertisements as an act of environmental pollution】
  • Date
  • 2015/12/18
  • Issue
    • The Waste Disposal Act authorizes competent authorities to publish the types of act which could be characterized as an act of environmental pollution. Is it consistent with the Constitution to regard the official notices published thereunder, recognizing the unapproved placement of advertisements in designated areas and by a designated manner as an act of pollution?
  • Holding
    •        Article 27, Subparagraph XI of the Waste Disposal Act providing that “The following acts are strictly prohibited within designated clearance areas . . . XI. Other acts that pollute the environment officially announced by the competent authority” is consistent with the principle of clarity of authorization of law guaranteed by Article 23 of the Constitution.
      
    •        The Official Notice of Tainan City Ref. No. Huan-fei 09104023431 issued on December 9, 2002 by the Tainan City Government (the same text was reissued as the Official Notice of the Tainan City Government Ref. No. Huan-guan 10000507010 on January 13, 2011 after the reconstruction of Tainan City Government) is deemed to exceed the scope of power granted by the enabling statute and be inconsistent with the principle of statutory reservation, since it is stipulated by the above official notice that placing of advertisements should be recognized as an act of pollution and indiscriminately forbidden and punished regardless of the fact whether placing of advertisements impairs environmental hygiene or public health and whether or not it equals the pattern of polluting the environment listed in Article 27, Subparagraphs I to X of the Waste Disposal Act. Therefore, the above official notice shall cease to be effective no later than three months after the date of promulgation of this interpretation.
  • Reasoning
    •        In principle any restriction imposed on people’s fundamental rights shall be regulated by law, but, when it is appropriate, the legislative body is allowed to authorize competent authorities to promulgate orders as supplementary regulations (see J.Y. Interpretations Nos. 443 and 488). However, the purpose, content and scope of the authority so granted must be clear and precise. And the orders promulgated by the competent authority thereunder are permitted by the Constitution only if they are within the scope of this authority. This has been repeatedly explained in our previous interpretations (see J.Y. Interpretation Nos. 568, 658, 710 and 730).  The issue of whether the authority granted is clear and precise must be judged by the correlated meaning of the provisions as a whole rather than a rigid reading of the text of the provisions (see J.Y. Interpretations Nos. 394 and 426). According to Article 1, the legislative purposes of the Waste Disposal Act are: “the effective clearance and disposal of waste, improvement of environmental sanitation and maintenance of public health”. And, according to Article 27, Subparagraph XI of the Waste Disposal Act, which provides that “The following acts are strictly prohibited within designated clearance areas . . . XI. Other acts that pollute the environment officially announced by the competent authority” (hereinafter “the Article at issue”), the competent authorities are authorized to additionally publish official notices that supplement acts of environmental pollution other than those listed in Article 27, Subparagraphs I to X of the same Act. Therefore, the acts accordingly prohibited by the official notice of the competent authority shall equal the pattern of polluting environment listed in Subparagraphs I to X. In addition, it is deduced from Subparagraph III  (“The polluting of the ground, pools of water, drainage gutters, walls, beams or pillars, utility poles, trees, roadways, bridges or other fixed structures”) and Subparagraph X  (“The posting or painting of advertisements that pollutes fixed structures”) of this Act that the meaning of the act of environmental pollution referred thereto is not limited to discarding waste. Other acts that impair environmental hygiene and public health are also included in the meaning. Hence, the Article at issue is still consistent with the principle of clarity of authorization of law derived from Article 23 of the Constitution. 
      
    •        The official Notice of Tainan City Ref. No. Huan-fei 09104023431 published on December 9, 2002 in accordance with the Article at issue, provides that: “Matters to be announced: 1. Within the designated clearance areas in this city, placing advertisements without approval of the competent authority, in the manner of hanging, hitching, attaching, painting, plastering, erecting, pining, clipping, laying or other manners on roadways, walls, beams or pillars, utility poles, trees, bridges, drainage gutters, pools of water or other fixed structures, will be recognized as acts of environmental pollution. 2. “Roadways” addressed in the preceding paragraph refer to roads, streets, alleys, roadway traffic islands, sidewalks, squares, walkways, hallways or other places provided for public traffic. . . .” (the same text was reissued as the Official Notice of the Tainan City Government Ref. No. Huan-guan 10000507010 on January 13, 2011 after the reconstruction of the Tainan City Government. These two official notices are collectively referred to as “the official notices at issue” hereinafter. The official notices at issue, which provide that placing advertisements without approval of the competent authority in the designated ways and in designated areas shall be recognized as acts of environmental pollution and indiscriminately forbidden and punished, regardless of the fact whether placing advertisements impairs environmental hygiene or public health and whether or not it equals the pattern of polluting the environment listed in Article 27, Subparagraphs I to X of the Waste Disposal Act, are deemed to exceed the scope of power granted by the enabling statute and are inconsistent with the principle of statutory reservation. The competent authority shall promptly amend the relevant regulations in accordance with the reasoning above in order to distinctively characterize unapproved placement of advertisements as being equal to the above pattern of polluting the environment and as being an act of illegal environmental pollution. And the official notices at issue shall cease to be effective no later than three months after the date of promulgation of this interpretation.
      
    •        Article 11 of the Constitution stipulates that people’s freedom of speech shall be protected. Given that freedom of speech carries the functions of self-fulfillment, communication of viewpoints, pursuing truth, gratification of the people’s right to know, formation of public opinion and promotion of all kinds of rational political and social activities, thus constituting an essential mechanism in the maintenance of the normal development in a democratic and diverse society, the State must endeavor to provide protection to the maximum extent (see J.Y. Interpretations Nos. 509, 644 and 678). Since advertising also carries the function of expressing an opinion, and may thus be included in the coverage of the right to free speech  guaranteed in Article 11 of the Constitution (see J.Y. Interpretations Nos. 414 and 623), the expression of opinions and communication of viewpoints to others in public places in the common manner shall not be prohibited. Even though the official notices at issue were not published for the purpose of restricting people’s freedom of speech or other fundamental rights guaranteed by the Constitution, such restrictions imposed on people’s freedom of speech or other fundamental rights may occur when, in individual cases, the competent authority disapproves of the placing of advertisements after reviewing the context thereof and the time, place and manner of the placement. Hence, when the competent authority amends the official notices at issue according to this interpretation, the necessity and appropriateness of the possible constraint imposed on people’s freedom of speech or other fundamental rights guaranteed by the Constitution shall be comprehensively and thoroughly considered. 
      
    •        The petitioner further alleged that the Supreme Administrative Court took a narrower view in its Ref. No. Cai-zi-3491 Ruling (2010) on the issue of “materiality” under Article 235 of the Administrative Litigation Act revised as of October 28, 1998 when compared with other similar cases, thus constraining the people’s right of instituting legal proceedings. This shall be characterized as a mere accusation of the legitimacy of fact-finding and law-application of the courts. In addition, the petitioner may not petition for an interpretation of the official notice Ref. No. huan-guan- 10000503990 of the Environmental Protection Bureau of the Tainan City Government issued on January 11, 2011, which designated the entire administrative district governed by Tainan City as a designated clearance area, which the petitioner deems to be excessive, since the court did not apply the official notice indicated above in the final and binding judgment. The aforementioned portions of the petition are not consistent with Article 5, Paragraph 1, Subparagraph 2, of the Constitutional Interpretation Procedure Act and shall all be dismissed in accordance with Paragraph 3 of the same Article. 
      
    • ______________________
      
    • * Translated by C.Y. HUANG.
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