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  • Interpretation
  • No.769【Open Ballot System for the Election of County/City Council’s Speaker and Deputy Speaker】
  • Date
  • 2018/11/09
  • Issue
    • Do the provisions in Articles 44 and 46 of the Local Government Act regarding the use of open ballot system for the election of county/city council’s speaker and deputy speaker comply with the spirit and intent Article 129 of the Constitution and Article 9, Paragraph 1 of the Additional Articles of the Constitution?
  • Holding
    •        Articles 44, Paragraph 1, First Sentence of the Local Government Act provides that “…… county/city councils shall have a speaker and a deputy speaker ……, who shall be elected or recalled by open ballot by …… county/city councilors ……” and Article 46, Paragraph 1, Subparagraph 3 provides that “ [r]ecall of ……. the speaker and deputy speaker of the county/city council ……shall be carried out in accordance with the following provisions: ……3. …… the councilors …… in attendance shall vote on the recall through open ballot.” The part regarding the use of open ballot system complies with the spirit and intent of Article 9, Paragraph 1 of the Additional Articles of the Constitution, which requires the Central Government to “establish it by the enactment of congressional law.”
      
    •        Since the election and recall of county/city council’s speaker and deputy speaker are not covered by Article 129 of the Constitution, there is no violation of Article 129 of the Constitution in the aforementioned part regarding the use of open ballot system in the Local Government Act.
  • Reasoning
    •        To resolve the issue whether to change to an open ballot system the secret ballot system adopted in the election or recall of the speaker and deputy speaker, as stipulated in Article 6, First Sentence of the Organic and Autonomous Act of the Yunlin County Council, which provides that “[t]his Council shall have one speaker and one deputy speaker, who shall be separately elected or recalled by secret ballot by the councilors,” as amended and promulgated by the Petitioner, the Yunlin County Council, on July 16, 2001, the Petitioner filed a petition to this Court for interpretation, claiming that the two controlling stipulations, which are Article 44, Paragraph 1, First sentence of the Local Government Act, as amended and promulgated on June 22, 2016, which provides: “…… [C]ounty/city councils shall have a speaker and a deputy speaker ……, who shall be elected or recalled by open ballot by …… county/city councilors ……” and Article 46, Paragraph 1, Subparagraph 3, which provides that “[r]ecall of ……. the speaker and deputy speaker of the county/city council ……shall be carried out in accordance with the following provisions: ……3. …… the councilors …… in attendance shall vote on the recall through open ballot.” (hereafter as the Stipulations at issue), were in violation of Articles 129, 171 and 23 of the Constitution. We considered the petition as complying with the requirements set forth in Article 5, Paragraph 1, Subparagraph 1 of the Constitutional Court Procedure Act and granted review.
      
    •        Even though the Petitioner subsequently revised Article 6, First Sentence of the Organic and Autonomous Ordinance of the Yunlin County Council and announced the revision in the Yunlin County Government Order Fu-Hsing-Fa-Yi 1072902554A of June 28, 2018 as: “This Council shall have one speaker and one deputy speaker, who shall be separately elected or recalled by open ballot by the councilors”, making it comply with the requirement regarding the use of open ballot system in the Stipulations at issue, the Stipulations at issue govern the elections and recalls of all the county/city councils’ speakers and deputy speakers throughout the nation and involve more than only one single local council’s election and recall of speaker and deputy speaker. Furthermore, since the question of constitutionality at issue concerns the division of powers between central and local governments, as well as the scope of local self-government, it is inherently important and worthy of constitutional interpretation. Besides, as of the date of this Interpretation, several counties/cities’ councils have not yet changed their rules regarding the election and recall of council’s speaker and deputy speaker in their organic and autonomous ordinances, therefore it has essentially significant values for this Court to issue an interpretation regarding the Stipulations at issue. The aforementioned revision by the Petitioner to Article 6, First Sentence of the Organic and Autonomous Act of the Yunlin County Council does not affect our decision to grant this review. We hereby issue this Interpretation with the following reasons:
      
    •        1. The Stipulations at issue complies with the spirit and intent of Article 9, Paragraph 1 of the Additional Articles of the Constitution.
      
    •        On the subject of local self-government and the issue regarding how to divide the powers between the central and local governments, there are express provisions in the tenth chapter of the Constitution and Article 9, Paragraph 1 of the Additional Articles of the Constitution respectively. The spirit and intent of these provisions are as follows: when a matter is specified by the Constitution as within the power of the Central Government or of local governments (such as the matters provided in Articles 107 to 110 of the Constitution and Article 9, Paragraph 1 of the Additional Articles of the Constitution) the provisions shall be followed. If a matter is not expressly mentioned in the Constitution, the nature of the matter shall be employed as the criteria to decide whether it is within the power of the Central Government or of local governments. In case of dispute, it shall be settled by the Legislative Yuan (see Article 111 of the Constitution). Accordingly, when it comes to the dispute of the division of powers between the central and local governments, whether there is an express provision in the Constitution and the Additional Articles of the Constitution on the matter should be foremost studied.
      
    •        Regarding the matters of self-government at the level of county, Article 108, Paragraph 1, Subparagraph 1 of the Constitution has provided, “In the following matters, the Central Government shall have the power of legislation and administration, or delegate the power of administration to the governments of the provinces and counties: 1. General principles of self-government in the provinces and counties.” At the same time, Article 9, Paragraph 1 of the Additional Articles of the Constitution further provides, “The system of self-government in the provinces and counties shall include the following provisions, which shall be established by the enactment of congressional law, notwithstanding the restrictions in Article 108, Paragraph 1, Subparagraph 1; Article 109; Article 112 through Article 115; and Article 122 of the Constitution……” It is evident that the Constitution and the Additional Articles of the Constitution have expressly authorized the Central Government to legislate on the matters of self-government at the level of county, with no need of referring to Article 111 of the Constitution to decide otherwise.
      
    •        As far as the relationship of preemption or application between the Constitution and the Additional Articles of the Constitution is concerned, since Article 9, Paragraph 1 of the Additional Articles of the Constitution has provided that the systems of self-government at the levels of province and county shall be decided by the enactment of congressional law, notwithstanding the restrictions in Article 108, Paragraph 1, Subparagraph 1, this Interpretation shall base upon the spirit and intent of the said provision of the Additional Articles of the Constitution to review and decide the Petition.
      
    •        Article 9, Paragraph 1, Subparagraph 3 expressly provides that “[a] county shall have a county council,” however, in addition to the establishment of county council, it could be reasonably interpreted to include essential matters regarding the organization and operation of the county council. The requirement that a county council shall have a speaker and a deputy speaker, as well as the ballot system of election and recall, both concern how the councilors perform their mandatory duty to vote and elect an appropriate person who represents that local legislature to the outside world and to internally chair and manage the legislative matters of the council, as well as how to recall such persons so as to disqualify them. Consequently, it constitutes an essential matter regarding the organization and operation of the county council and to be regulated by the Central Government with congressional law. As the legislation on this constitutionally-delegated matter involves the policy-making on the system of self-government, this Court shall defer to such legislative decisions and generally adopt a lenient standard of scrutiny to conduct this review.
      
    •        There are indeed pros and cons in the use of either an open ballot system or a secret ballot system in the election and recall of the speaker and deputy speaker of county council, it should be left to the legislative branch’s policy choice. At the same time, it is found that, considering the electoral practices in the elections of speakers and deputy speakers of local council, in order to emphasize the importance of responsible politics and to prevent electoral frauds (see Legislative Yuan, Agenda-related Documents of the 2nd Sitting in the 1st Session of the 9th Term, Wen-Shu-Yuan-Tsung Dossier No. 1544, Member’s Proposals Nos. 18257 and 18525),  the legislators of the Central Government then revised the previous text to become the Stipulations at issue, changing the ballot system adopted in the election and recall of speaker and deputy speaker of local council from secret ballot system to open ballot system. With the aforementioned legitimate purpose and a rational relationship between the means and the purpose, the revision was not an arbitrary decision and did not exceed the reasonable scope of Central Government’s legislative power.
      
    •        In sum, the part regarding the use of open ballot system in the Stipulations at issue complies with the spirit and intent of Article 9, Paragraph 1 of the Additional Articles of the Constitution, which requires the Central Government to “establish it by the enactment of congressional law.”
      
    •        2. There is no violation of Article 129 of the Constitution in the Stipulations at issue.
      
    •        Article 129 of the Constitution expressly provides that “[t]he various kinds of elections prescribed in this Constitution, except as otherwise provided by this Constitution, shall be by universal, equal, and direct suffrage and by secret ballot.” It is found that neither the Constitution nor the Additional Articles of the Constitution has any specific provision on the matters of election and recall of the speaker and deputy speaker of local council, consequently such matters are not covered by Article 129 of the Constitution. Therefore, there is obviously no violation of Article 129 of the Constitution in the part regarding the use of open ballot system in the Stipulations at issue.
      
    • *Translated by Hsiu-Yu FAN
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