I. Summary of the Petitioner’s Statement
Legislator Fei Alex Hrong-tai and 37 others (as detailed in the attached list) petitioned for this interpretation, appointing Hsieh Yi-fong, Lin Wen-jui, and Weng Chung-chun as the lead petitioners. They argued that Article 1 of the Irrigation Act, promulgated on July 22, 2020, stipulates: “The purpose of this Act is to ensure food safety and agricultural sustainability; promote the advancement of farmland water conservancy activities; and improve the construction, maintenance, and management of farmland water conservancy facilities, in order to stabilize the supply of irrigation water needed for the development of agriculture, expand irrigation services; maintain agricultural production, enhance the value of utilization of farmland, and effectively manage the institutional reform of the irrigation associations.” (Hereinafter referred to as Disputed Provision 1) Article 18, Paragraph 1 provides: “The Competent Authority, in order to arrange for irrigation management in farmland water conservancy activities areas, may establish irrigation management organizations within its subordinate agencies, to handle the following matters: 1. Distribution and management of farmland water conservancy water. 2. Maintenance of orderly use of irrigation water and guidance of water conservancy committee affairs. 3. Construction, management, improvement, and maintenance of farmland water conservancy facilities. 4. Disaster prevention and post-disaster response measures for farmland water conservancy facilities. 5. Personnel management of professional staff in irrigation management organizations (hereafter known as farmland water conservancy personnel). 6. Management of and revenue earning from assets belonging to the Farmland Water Conservancy Activities Operational Fund.” (Hereinafter referred to as Disputed Provision 2) Article 18, Paragraph 3 regulates: “Regulations governing the establishment of irrigation management organizations as mentioned in Paragraph 1 of this Article, the scope of their authority, and other relevant matters shall be stipulated by the Competent Authority.” (Hereinafter referred to as Disputed Provision 3) Article 19, Paragraph 3 stipulates: “Regulations governing farmland water conservancy personnel, , performance appraisals, incentives or punishments, retirement, dismissal, bereavement compensation, insurance, and other protections of their rights, as well as personnel management, shall be stipulated by the Competent Authority.” (Hereinafter referred to as Disputed Provision 4) Article 23, Paragraph 1 provides: “Following the organizational reform of the Irrigation Associations, their assets and debts shall be summed up and taken over by the state, and incorporated into and managed by the Farmland Water Conservancy Activities Operational Fund set up in accordance with Paragraph 1 of the preceding Article.” (Hereinafter referred to as Disputed Provision 5) Article 23, Paragraph 5 regulates: “After organizational reform of Irrigation Associations, in cases where as a result of reorganization of land ownership it is discovered that land originally belonging to an Irrigation Association as registered by the land administration of the relevant municipality, county, or city has the notation “state-owned” in the column for the owner, the managing organization shall be a subordinate agency designated by the Competent Authority.” (Hereinafter referred to as Disputed Provision 6) Article 34, Paragraph 2 stipulates: “Starting from the date when this Act comes into effect, the Act of Irrigation Association Organization shall no longer apply.” (Hereinafter referred to as Disputed Provision 7) The reorganization of the Irrigation Associations, the establishment of the Irrigation Agency, the comprehensive assumption of the Irrigation Associations’ properties by the state without expropriation, the handling of irrigation affairs by the Council of Agriculture (hereinafter referred to as the COA), and the authorization to the competent authority to prescribe relevant regulations on irrigation organizations and personnel management violate the principles of Gesetzesvorbehalt, separation of powers, non-retroactivity, protection of legitimate expectations, and proportionality. They infringe the freedom of association and property rights of the Irrigation Associations as guaranteed by the Constitution. Therefore, petitioners request a constitutional interpretation. The reasons are summarized as follows:
1. Irrigation organizations in Taiwan originated as mutual aid associations naturally formed by early settlers who crossed the straight to cultivate and develop the land. These organizations have a history of almost four hundred years. Since being officially granted the status of juridical persons during the Japanese colonial period, they have existed for over a century. Irrigation infrastructure construction began as early as the Dutch and Koxinga (Cheng Cheng-kung) regimes. During the Qing dynasty, irrigation systems were privately operated. Under Japanese rule, the system evolved through various forms—public irrigation associations, government-established irrigation associations, and water irrigation associations—ultimately recognized as public juridical persons and self-governing entities. However, at no point during this historical development was there a policy to dissolve the Irrigation Associations.
2. Disputed Provisions 1 and 5 merely refer to the “reorganization” of the Irrigation Associations, without explicitly providing that such Associations shall be transformed into governmental agencies or that a new Irrigation Agency shall be established. Even if the Act of Irrigation Association Organization cease to apply, the continued operation of the Irrigation Associations could still be conducted pursuant to Article 12 of the Irrigation Act concerning public juridical persons, in conjunction with the relevant provisions of the Civil Associations Act. Therefore, the Council of Agriculture’s establishment of the Irrigation Agency based on Disputed Provisions 1 and 5 constitutes an explicit violation of the principle of clarity and definiteness of law, the principle of Gesetzesvorbehalt for organizational laws, the principle of separation of powers, the general principle of Gesetzesvorbehalt, and the doctrine prohibiting interference or restriction except by law.
3. Disputed Provision 7 stipulates that the Act of Irrigation Association Organization shall no longer apply, which in effect extinguishes the status of all 17 Irrigation Associations nationwide as public juridical persons. This clearly violates the principle of non-retroactivity of law, the principle of protection of legitimate expectations, the principle of Gesetzesvorbehalt, and the doctrine prohibiting interference or restriction except by law. Moreover, it infringes the freedom of association guaranteed under Article 14 of the Constitution for the 17 Irrigation Associations and their member farmers.
4. The Irrigation Associations are independent public juridical persons, and their assets are not state-owned property. Disputed Provisions 5 and 6 provide that the assets and liabilities of the Irrigation Associations shall be comprehensively assumed by the State without undergoing a lawful expropriation procedure. This constitutes a forcible appropriation of the Irrigation Associations’ property by the State, and thus is in violation of the principle of Gesetzesvorbehalt and an infringement upon the property rights protected under the Constitution.
5. The rights to agricultural water use, ownership of irrigation facilities, and the right to operate and manage irrigation were originally vested in the Irrigation Associations. Disputed Provision 2, which transfers the responsibility for irrigation management to the Council of Agriculture, clearly infringes the water rights, ownership of irrigation facilities, and management rights of the Irrigation Associations nationwide. This violates the principle of proportionality and constitutes an infringement upon the property rights protected under the Constitution.
6. Disputed Provision 3, concerning the regulations governing the establishment of irrigation management organizations, and Disputed Provision 4, concerning the regulations for the recruitment and personnel management of irrigation, in effect utilize a general law to change administrative organizations. This constitutes a violation of the principle of statutory reservation for organizational laws, Article 5, Paragraph 3 of the Basic Act governing Central Administrative Agencies Organization (hereinafter “the Basic Act of Organizations”), and Paragraphs 3 and 4 of Article 3 of the Additional Articles of the Constitution.
7. Following the promulgation and enforcement of the Irrigation Act, the Irrigation Associations have been deemed by the Executive Yuan and the Council of Agriculture as extinguished, and their assets—amounting to several trillions in value—will be assumed by the State. This is tantamount to a forcible confiscation by the government, resulting in irreparable loss. Furthermore, the newly established Irrigation Agency—which should not have been created in the first place—is currently recruiting irrigation personnel, who will consequently become a financial burden on the government.
8. In order to prevent irreparable and great harm to the rights of people and public interests, a petition for provisional injunction is also submitted.
II. Review of Admissibility Requirements
According to the Constitutional Court Procedure Act, cases that were already pending but not yet concluded prior to the enforcement of its amendments shall, unless otherwise provided by the Act itself, be governed by the amended provisions. However, the admissibility of such cases shall be determined in accordance with the provisions in force prior to the amendment—namely, the Constitutional Interpretation Procedure Act (hereinafter “the former Act”), as explicitly set forth in Article 90, Paragraph 1 of the amended Act. Pursuant to Article 5, Paragraph 1, Subparagraph 3 of the former Act, if one-third or more of the total number of incumbent members of the Legislative Yuan believe that, in the exercise of their powers, there arises a question concerning the application of the Constitution, or a question as to whether a law conflicts with the Constitution, they may petition for a constitutional interpretation. According to the Legislative Yuan Gazette 109(52): 296–297, none of the 38 petitioning legislators voted in favor of the Third Reading of the Irrigation Act. As this number meets the one-third threshold of the total number of legislators at the time, and given that the petitioners, following the promulgation and enforcement of the Act by the President, have genuine doubts as to the constitutionality of Disputed Provisions 1 through 7, their petition for interpretation falls within the scope of Article 5, Paragraph 1, Subparagraph 3 of the former Act and is therefore admissible.
III. Summary of Oral Arguments Presented by the Petitioners, Competent Authorities, and Interested Parties
An oral hearing was held by this Court at 10:00 a.m. on May 24, 2022. The appointed petitioners, the competent authorities—the Executive Yuan and the Council of Agriculture—the interested party, Taoyuan Irrigation Association of Taiwan, and relevant experts and scholars were notified to appear and present their opinions. The main points of the oral arguments presented by the petitioners, competent authorities, and interested parties are summarized as follows:
1. Summary of the Petitioners’ Oral Arguments
The petitioners asserted the following: Irrigation Associations predate the legal framework of Taiwan, and their recognition as public juridical persons under the Water Act and the Act of Irrigation Association Organization merely reaffirms an existing fact. As members of the associations bore the significant financial burden of constructing irrigation systems, the associations also possess characteristics akin to private legal entities funded by private investors. The petitioners contended that the true legislative intent behind the Irrigation Act was motivated by electoral considerations and a desire to reduce agricultural water usage, rather than by legitimate public interest. This legislative purpose bears no proper connection to the reorganization of Irrigation Associations into government agencies. Although the Council of Agriculture claims the legislative objective is to establish a public system for national water resource management, this contradicts the purpose stated in Disputed Provision 1, which is to ensure food security and sustainable agriculture. While Irrigation Associations are public juridical persons, they are nonetheless entitled to constitutional protection of fundamental rights. The term “reorganization” under Disputed Provisions 1 and 5 lacks a clear definition and is susceptible to multiple interpretations, thereby violating the principle of legal clarity and definiteness of law. Interpreting “reorganization” to mean conversion into government agencies effectively results in the dissolution of the associations and the appropriation of their assets. As the Irrigation Act does not explicitly provide for the dissolution or abolition of the Irrigation Associations, no such legal effect may arise. Under the principles of protection of legitimate expectations and non-retroactivity, the existing status of the Irrigation Associations as public juridical persons—as well as their rights to water and to operate and manage irrigation—cannot be extinguished merely because the Act of Irrigation Association Organization cease to apply. The petitioners further argued that the assets of the Irrigation Associations are not state property, and that Disputed Provisions 5 and 6, which mandate the compulsory transfer of such assets to the State, amount to confiscation of private property by the State, are in violation of the principle of proportionality and the property rights guaranteed under Article 15 of the Constitution. They also contended that the irrigation management organizations, which form the core of the Irrigation Agency, should be established by statute in accordance with Articles 4 and 6 of the Basic Act of Organizations. However, Disputed Provisions 3 and 4 delegate these matters to administrative regulations, thereby violating the principle of Gesetzesvorbehalt for organizational laws and Paragraphs 3 and 4 of Article 3 of the Additional Articles of the Constitution. Finally, they asserted that irrigation-related affairs fall within the authority of local governments, not the central government. Therefore, the reorganization of the Irrigation Associations into government agencies and the establishment of the Irrigation Agency under the amended Irrigation Act—placing irrigation management under the jurisdiction of the Council of Agriculture—violates the constitutional guarantee of local self-government as provided in Articles 107 to 110 of the Constitution.
2. Summary of the Competent Authorities’ Oral Arguments
The Executive Yuan asserted the following: Irrigation for agricultural land is a task entrusted to the State—including both central and local governments—under the Constitution. The Irrigation Associations are public juridical persons established by law to assist the government in carrying out irrigation undertakings. As such, the revision or abolition of their institutional framework may, in principle, be effected through legal statutes of same hierarchical status. Furthermore, the Irrigation Associations fall within the concept of “functional self-governance” and are not entitled to constitutional protection of local self-government. As public juridical persons created solely by law and not constitutionally guaranteed, they cannot invoke institutional guarantees to preserve their continued existence. Moreover, since the Irrigation Associations are established by law for the specific purpose of fulfilling public functions, individual associations cannot claim protection of fundamental constitutional rights, nor can they rely on such rights to resist the revision or abolition of the public juridical person system itself. Disputed Provisions 1, 5, 6, and 7, which reorganize the Irrigation Associations into the Irrigation Agency, do not violate the principles of clarity and definiteness of law, Gesetzesvorbehalt, separation of powers, protection of legitimate expectations, or non-retroactivity of law. Nor do they restrict or deprive the former members of their freedom of association as guaranteed by Article 14 of the Constitution. Additionally, Disputed Provisions 3 and 4 do not contravene the principle of statutory reservation for organizational laws, nor do they violate Paragraphs 3 and 4 of Article 3 of the Additional Articles of the Constitution.
The Council of Agriculture asserted the following: Historically, changes in the ownership of irrigation-related property began when the Japanese colonial government acquired privately owned irrigation works (ponds and canals), thereby converting them into public property no longer classified as private assets. The assets of public and government-established irrigation systems were subsequently inherited by public juridical persons known as Water Irrigation Associations. After World War II, this institutional lineage continued under the Irrigation Associations as public juridical persons. In view of this historical development of the ownership and transfer of irrigation assets, it is difficult to characterize the property of the Irrigation Associations as private property. As public juridical persons, the assets of the Irrigation Associations are public assets—not the property of individual farmer-members. Therefore, the reorganization of the Irrigation Associations from public juridical persons into administrative agencies does not constitute expropriation of member or private property. Moreover, since the Irrigation Associations were created by law as public juridical persons, they cannot invoke the protection of property rights under Article 15 of the Constitution to resist the comprehensive assumption of their assets by the State as a result of reorganization. After the reorganization, the assets and liabilities of the Irrigation Associations were comprehensively assumed by the State, registered as state-owned, and incorporated into the “Operating Fund for Irrigation Affairs,” which is earmarked solely for irrigation-related purposes. This ensures the continued public-interest use of what was previously public property belonging to the Irrigation Associations. Finally, Disputed Provision 3, as a statutory authorization for the issuance of subordinate regulations, does not violate the property rights protected under Article 15 of the Constitution.
3. Summary of the Interested Party’s Oral Arguments
The interested party Taoyuan City stated the following: Under postwar legal system, the property of the Taoyuan Irrigation Association has consistently been recognized as private property collectively owned by its members, rather than as public property. Its financial resources have been entirely self-generated, relying on the revitalization of its own assets to achieve self-sufficiency. Disputed Provisions 3, 5, and 6 unilaterally nationalize the assets of the Association, thereby misappropriating private property on an erroneous legal basis. This results in unjust harm to farmers who, through generations of voluntary contributions, have jointly developed the irrigation system. These provisions violate the principles of clarity and definiteness of law, proportionality, and due process of law, and infringes the property rights protected under Article 15 of the Constitution. Moreover, by applying Disputed Provisions 1, 5, 6, and 7 to convert the legal status of the Irrigation Associations from public juridical persons into the Irrigation Agency, the Executive Yuan has deprived existing members of their freedom of association as guaranteed under Article 14 of the Constitution and undermined the basic means of subsistence for the people. Accordingly, the measures should be deemed unconstitutional.
IV. Legal Reasoning of the Judgment
1. Historical Development of Irrigation Organizations in Taiwan
(1) Taiwan’s Irrigation Organizations Evolved from Private Agreements into Public Juridical Persons during the Japanese Colonial Period
A. The Period of Private Agreements and Customary Practices
The history of farmland irrigation in Taiwan dates back centuries. During the Qing Dynasty, while some irrigation canals and reservoirs were constructed by official authorities, most were built and maintained through private funding by local communities. The rights and obligations arising from the use and management of these irrigation works were governed by private law relationships, based on either contractual agreements or customary practices.
However, as water is a natural resource and its use directly affects agricultural production, the Japanese government, upon assuming control over Taiwan, promptly undertook investigations into the conditions of local irrigation systems and the customary practices governing their use. Gradually, the utilization of water resources was brought under the domain of public authority and placed under regulatory management.
B. Public Ponds and Canals
According to the Taiwan Public Ponds and Canals System Regulations, promulgated in 1901 (Meiji 34) and amended in 1903, and the Enforcement Regulations for the Taiwan Public Ponds and Canals System Regulations, promulgated in 1904, any waterways, ponds, and their appurtenances (including embankments of rivers or lakes directly related to such waterworks) established for the purpose of irrigating paddy and dry fields, and deemed by the administrative authorities to involve public interest, were designated as “public irrigation systems.” The relevant area was to be designated by the administrative authorities. Interested parties within the designated area—defined as landowners, tenant farmers, and irrigation system owners whose interests were affected by the establishment of the public irrigation system—were required to formulate bylaws in accordance with the regulations prescribed by the Governor-General of Taiwan, subject to the approval of the administrative authority. Upon the public announcement of a public irrigation system, the administrative authority was to directly select five individuals from among the interested parties to serve as preparatory committee members. If customary practices existed with respect to the public irrigation system, they could continue to be followed insofar as they did not conflict with the Regulations, orders issued thereunder, or the approved bylaws. When deemed necessary, the administrative authority could collect irrigation fees and other expenses on behalf of the rights holders and remit them accordingly. Such collection was subject mutatis mutandis to the provisions concerning late payment under the Taiwan National Tax Collection Rules. All disputes concerning water rights in relation to public irrigation systems were to be resolved by the administrative authority (see Articles 1, 2, 4, 6, and 9–11 of the Regulations, and Articles 1 and 5 of the Enforcement Regulations).
Accordingly, once an irrigation system was designated by the administrative authority as a public irrigation system, the administrative authority was empowered to oversee the preparatory committee tasked with formulating the bylaws governing its operation. These bylaws were to be adopted by a majority vote of the interested parties—including landowners, tenant farmers, and irrigation system owners—rather than being unilaterally determined by the irrigation system owner responsible for its construction or operation. The bylaws were required to conform to the regulations prescribed by the Governor-General of Taiwan and to receive approval from the administrative authority. The collection of irrigation fees and charges was subject mutatis mutandis to the provisions governing late payment under the national tax collection regime. Furthermore, all water-related disputes concerning public irrigation systems were to be resolved by the administrative authority, not by judicial organs.
In order to enable public irrigation systems to obtain necessary operating funds through loans from the Nippon Kangyō Bank, the Taiwan Public Ponds and Canals System Regulations were amended again in 1904 to provide that interested parties in a public irrigation system could, with the approval of the administrative authority, organize an association. The Public Irrigation System Association was to be recognized as a juridical person and represented by a manager. In accordance with its bylaws, the association was authorized to levy and collect irrigation fees and related charges. Corresponding amendments were also made to the Enforcement Regulations for the Taiwan Public Irrigation System Regulations, requiring that, when organizing a Public Irrigation System Association, a projected income and expenditure statement prepared in accordance with the association’s bylaws be submitted along with the application for approval by the Governor-General (see Articles 4-2 to 4-4 of the Regulations, and Article 5 of the Enforcement Regulations).
Based on the amended provisions, the Public Ponds and Canals System Association, as a juridical person, not only retained the public-law character of the original public irrigation system but was also vested with the authority to impose and collect irrigation fees—an exercise of public power—and was required to have its budget approved by the State. In light of these features, the Public Ponds and Canals System Association should be regarded as a public juridical person established by a statute that formed part of the apparatus of the State and participated in the exercise of sovereign authority.
C. Government-Established Ponds and Canals Systems
According to the Government-Established Ponds and Canals System Regulations promulgated in 1908, a “government-established ponds and canals system” refers to irrigation and drainage channels, ponds, and related structures directly operated by the government, including land and fixtures directly related to waterworks. The land and its appurtenances within the area of a government-established ponds and canals system were acquired by the government, and all other rights therein were extinguished. Landowners, tenant farmers, holders of superficies rights, or any persons using water from such systems for power generation or other purposes were obligated to pay irrigation fees. The collection of such fees was subject mutatis mutandis to the Taiwan National Tax Collection Rules. Disputes concerning water usage in government-established irrigation systems were to be adjudicated by the Governor-General of Taiwan (see Articles 1, 3, 5, 7, and 8 of the Regulations).
Accordingly, in the case of government-established ponds and canals systems, both ownership and operational authority originated from the State. Even after the promulgation of the Government-Established Ponds and Canals System Association Regulations in 1910, which allowed for the formation of associations for such systems, the powers of those associations remained limited. Management authority continued to reside with the Director of the Civil Engineering Bureau or the Director of the Department under the Governor-General of Taiwan (see Article 4 of the Regulations). These associations were essentially departments within the governmental structure.
D. Water Irrigation Associations
The establishment of Public Ponds and Canals System Associations and Government-Established Ponds and Canals System Associations was aimed solely at the use and management of irrigation and drainage works, and did not encompass flood prevention. In 1921, the Taiwan Water Irrigation Association Ordinance was promulgated, providing that water irrigation associations could be established as necessary for irrigation, drainage, or flood prevention purposes. The Ordinance continued to grant such associations juridical person status (see Articles 1 and 2 of the Ordinance). With respect to their organization and authority, the structure largely followed that of the Taiwan Public Ponds and Canals System Regulations. For instance, the Ordinance stipulated that a water irrigation association was a juridical person; that it must adopt bylaws in accordance with the provisions set by the Governor-General of Taiwan; that it could, pursuant to those same provisions, levy and collect association fees, labor duties, goods, membership contributions, and other charges—either directly or through local self-governing bodies entrusted with such collection—following the procedures applicable to national taxes. Such levies enjoyed subordinate preferential rights. If a party believed that a levy or collection was unlawful or improper, they could file an objection motion (see Articles 20, 24, and 25 of the Ordinance).
With respect to the formation of associations, government control was somewhat relaxed, allowing for more autonomous establishment by private parties. An association could be initiated by at least five founding members from among the association members, who would draft the association’s bylaws. Approval from more than one-half of all members—representing at least two-thirds of the total land area within the association’s jurisdiction—was required to submit an application for recognition to the Governor-General of Taiwan (see Article 4 of the Ordinance). However, the operation of the associations was brought under more direct governmental control. For example, the association was to have a Director, who was directly appointed by the local Governor or Prefectural Director for a four-year term and acted as the representative of the association, handling its affairs. The association also employed staff, with or without remuneration (selected from among individuals with a legal public-service relationship working in prefectural or municipal governments). Matters concerning their appointment and personnel administration were to be governed by regulations issued by the Governor-General. The association was to establish a council, composed of the Director and council members, which served as a consultative body to the Director. Council members were elected from among the members of the association pursuant to regulations issued by the Governor-General, and their election required official approval (see Articles 8 to 14 of the Ordinance). If deemed necessary for supervisory purposes, the Governor or Prefectural Director had the authority to dismiss the Director or council members. If the association failed to carry out a legally mandated duty, the supervising authority could execute it on the association’s behalf using its own funds (see Articles 35 and 36 of the Ordinance). Statutes of limitation for income or disbursements followed those applicable to government revenues and expenditures. The formulation, amendment, or supplementation of the annual budget for revenues and expenditures required approval by the supervisory authority, and the fiscal year had to conform to that of the government. Management, income and expenditure, and disposition of designated assets were also subject to the approval of the supervisory authority (see Articles 29 and 32 of the Ordinance).
In short, the affairs of the association were managed by a Director directly appointed by the local Governor or Prefectural Director, who also served as the association’s legal representative. Daily operations were carried out by staff members appointed and dismissed by the Director, all of whom maintained a public-law relationship with the association. The administration of the association was effectively directed by governmental authorities. The role of the members was limited to electing council members who served as a consultative body. If deemed necessary for supervisory purposes, the Governor or Prefectural Director had the authority to dismiss the Director or any council member. In cases where the association failed to carry out its statutory duties, the supervisory authority could execute such duties on its behalf at the association’s expense. It follows that water irrigation associations were public juridical persons in nature, subject to comprehensive and strict oversight by the government.
E. Consolidation of Irrigation Organizations into Water Irrigation Associations
Although the operational models of Public Ponds and Canals System Associations, Government-Established Irrigation Ponds and Canals Associations, and Water Irrigation Associations differed slightly, they all shared the characteristics of public juridical persons or administrative agencies: they were established and operated pursuant to government regulations, subject to governmental supervision, empowered to exercise public authority, and had disputes resolved by administrative authorities. Accordingly, the Supplementary Provisions of the Taiwan Water Irrigation Association Ordinance provided that Public Ponds and Canals System Associations or Government-Established Ponds and Canals System Associations could, upon application by their respective managers, be reorganized as Water Irrigation Associations in accordance with regulations prescribed by the Governor-General of Taiwan and upon receiving official approval. In the case of Government-Established Ponds and Canals System Associations being reorganized as Water Irrigation Associations, the Governor-General, if deemed necessary, could impose conditions upon the transfer of the government-established Ponds and Canals system to the newly formed Water Irrigation Association.
In 1922, the system of government-established Ponds and Canals systems was formally abolished. Existing government-established systems were either discontinued altogether (such as the Cihzi, Shizitou, and Houli ponds and canals), reclassified as public ponds and canals systems, or merged with Public Ponds and Canals System Associations to form Water Irrigation Associations—for example, the portion of the Taoyuan Main Canal constructed with national treasury funds was merged with the Taoyuan Public Ponds and Canals System Association.
Following the outbreak of the Second Sino-Japanese War in 1937, in response to wartime demands for food supply, industrial water, and firefighting needs, the Japanese government promulgated the Temporary Adjustment Ordinance for Agricultural Irrigation in Taiwan in 1941. Pursuant to that ordinance and the Enforcement Rules for the Temporary Adjustment Ordinance for Agricultural Irrigation in Taiwan, issued by the Governor-General of Taiwan in the same year, when the Governor-General deemed it necessary to adjust agricultural irrigation, he was authorized to issue binding orders regarding the allocation and timing of water drawn from the same river, reservoir, or other water source by Public Ponds and Canals System Associations, Water Irrigation Associations, or individual users of irrigation systems. The Governor-General was further authorized to designate Agricultural Irrigation Adjustment Zones covering the regions of such associations or surrounding areas connected to their operations. Thereafter, in accordance with the ordinance, the Japanese government gradually consolidated Public Ponds and Canals System Associations and Water Irrigation Associations drawing from the same river, reservoir, or other water source into larger Water Irrigation Associations organized by broader operational districts.
(2) Development of Taiwan’s Irrigation Organizations after Retrocession under the Nationalist Government
A. Water Irrigation Associations, Farmland Irrigation Associations, and Irrigation Committees
Before the end of Japanese rule, Taiwan’s various farmland irrigation organizations had already been consolidated by the Japanese government into Water Irrigation Associations. After the Nationalist Government assumed control, it initially retained the organizational framework of these Water Irrigation Associations and continued using the same name. The only change was that the position of Director was held concurrently by the county or district magistrate. However, Article 12 of the Water Act, already in force in Taiwan at the time (later renumbered as Article 14 in the 1963 amendment), provided: “Private parties may establish irrigation business, and upon approval by the competent authority, may organize irrigation associations or companies in accordance with the law.” This reflected a legislative intent to encourage private participation in irrigation. Based on that principle, the irrigation organizations were restructured as member-elected bodies: members would elect councilors, who in turn would elect the president, to be appointed by the Department of Agriculture and Forestry. The president served a four-year term. It was also considered inappropriate to continue using the Japanese-era name “Water Irrigation Association” under the postwar legal regime, and thus in 1946 the organizations were renamed Farmland Irrigation Associations. These associations were placed under the guidance of the Farmland Irrigation Bureau of the Department of Agriculture and Forestry under the Taiwan Provincial Government. As these Farmland Irrigation Associations did not initially include flood control in their scope of operations, the government later incorporated flood prevention functions and restructured them as Irrigation Committees in 1948. The members of the Irrigation Committee served four-year terms. In addition to the automatic inclusion of local township, district, and county heads as ex officio members appointed by the Irrigation Bureau, other members were elected by association members from different regions. The committee then elected a Chairperson and Vice Chairperson from among its members. The committee was responsible for deliberating and deciding on important organizational affairs. Irrigation Committees were authorized to impose deadlines for members to pay engineering, management, and maintenance fees, or to provide contributions in kind. Members failing to pay on time could be charged late penalties. The standards and procedures for such fees were to be determined by committee resolution and submitted to the relevant county government, then forwarded to the Irrigation Bureau for approval by the provincial government. When undertaking construction projects, the committee had the legal authority to conscript labor and expropriate land.
B. Irrigation Associations
Given that Irrigation Committees had been widely established throughout Taiwan, but that their complex organization and unique character were based solely on regulations issued by the Taiwan Provincial Government—without a statutory foundation, lacking juridical personhood, and facing legal uncertainty which prevented them from, for example, registering ownership of real property—a legislative amendment was made in 1955 (Year 44 of the Republic) to the Water Act, adding Paragraphs 2 and 3 to Article 3. Paragraph 2 provided: “The competent authority may, in light of regional needs, approve the establishment of local self-governing irrigation organizations to assist the government in promoting irrigation undertakings.” Paragraph 3 stated: “The irrigation self-governing organizations described in the preceding paragraph shall be public juridical persons. Their organizational regulations shall be formulated by the provincial government and submitted to the Executive Yuan for approval.” (See the records of the First Legislative Yuan, 14th Session, 24th Meeting, Legislative Yuan Bill-Related Documents Yuan-Tzung-293, Executive Proposal No. 223 and the accompanying draft amendments.) In accordance with this amendment to the Water Act, the Taiwan Provincial Government promulgated, with the Executive Yuan approval, the Organizational Regulations for Irrigation Associations in Various Regions of Taiwan Province in 1955, officially establishing Irrigation Associations as irrigation self-governing organizations. When the Water Act was comprehensively amended in 1963, it was noted that irrigation undertakings encompassed more than just irrigation per se, and the former term “irrigation self-governing organizations” was deemed too broad. To reflect actual circumstances, Article 12 was revised to replace the term with “Irrigation Associations,” while maintaining their status as public juridical persons. Accordingly, Article 12, Paragraph 1 provided: “The competent authority may, in light of regional needs, approve the establishment of Irrigation Associations to assist the government in carrying out irrigation undertakings.” Paragraph 2 provided: “The Irrigation Associations referred to in the preceding paragraph shall be public juridical persons. General principles governing their organization shall be separately prescribed.” (See records of the First Legislative Yuan, 30th Session, 1st Meeting, Legislative Yuan Bill-Related Documents Yuan-Tzung-293, Executive Proposal No. 664 and the attached draft amendments; the 31st Session, 41st Meeting, Legislative Yuan Bill-Related Documents Yuan-Tzung-293, Executive Proposal No. 664-1, Judicial and Economic Committee Review Report; and Legislative Yuan Gazette, 32nd Session, Issue 5, Meeting Transcript.)
Pursuant to the Water Act, the Act of Irrigation Association Organization was enacted to govern the legal framework for the operations of such associations. The regulatory structure underwent multiple amendments over time. When first promulgated and implemented in 1965, the Act provided that the Members’ Representative Assembly would serve as the highest authority, and that the president would be elected by the members—thus adopting a system of direct election. In the 1993 amendment, the system was changed to one of official appointment. The members’ assembly was replaced by a Board of Affairs Commissioners, and both the affairs commissioners and the president were appointed by the competent authority. Article 39-1 was also added. Paragraph 1 provided: “The Act shall apply for a period of three years from the date of promulgation.” Paragraph 2 provided: “The Executive Yuan shall, within three years, reorganize the Irrigation Associations into government agencies and incorporate them into the organizational structures of the competent authorities at each level.” This signaled a move toward transforming the associations into public agencies. In the 1995 amendment, Article 39-1, Paragraph 1 was revised to read: “The Executive Yuan shall, within two years from the promulgation of this Article, amend the relevant provisions of the Act in accordance with the principle of autonomous governance of Irrigation Associations and submit them to the Legislative Yuan for deliberation.” This reflected a shift back toward the model of juridical-person autonomy. In the 2000 amendment, Article 39-1 remained unchanged. It was not until the 2001 amendment that the system was revised once more to provide that both the affairs commissioners and the president would be elected by the members, thus restoring the direct election model. Subsequently, in order to promote the reorganization of Irrigation Associations as government agencies, the Legislative Yuan amended Article 40 of the Act in 2018, suspending the election of affairs commissioners and the president. The legislative rationale was to respond to changes in the agricultural environment and mitigate the negative side effects of direct elections, while pursuing goals such as strengthening the use of agricultural water resources, expanding services for farmers, and enhancing professional management within the organization (see legislative purpose for Article 40). In 2020, to ensure food security and agricultural sustainability, promote the development of irrigation undertakings, improve the construction, maintenance, and management of irrigation facilities, stabilize the supply of irrigation water required for agricultural development, expand irrigation services, maintain agricultural production, enhance farmland utilization, and address the reorganization of Irrigation Associations, the Irrigation Act was enacted and took effect on October 1 of that year. As a result, irrigation organizations were incorporated as part of the governmental administrative structure.
2. Disputed Provisions 1 and 5, which reorganize the Irrigation Associations into the Irrigation Agency, do not contravene the principle of clarity and definiteness of law.
(1) The requirement of clarity and definiteness of law does not mean that the wording of a law must be so specific and exhaustive as to leave no room or need for interpretation. In enacting legislation, lawmakers are entitled to take into account the complexity of the social realities governed by the law and the appropriateness of its application to individual cases, and may choose legal concepts and terminology accordingly. As long as the meaning of such terms is not incomprehensible when viewed in light of the legislative purpose and the overall coherence of the legal system, and as long as individuals subject to the law can reasonably foresee whether their conduct falls within the scope of regulation, and such matters may be reviewed and adjudicated by the courts, there is no violation of the principle of legal clarity. (See Judicial Yuan Interpretations Nos. 432, 521, 594, 602, 690, 794, 799, 803, and 804.)
(2) Although Disputed Provisions 1 and 5 merely refer to the reorganization of the Irrigation Associations and do not explicitly stipulate that such associations are to be transformed from public juridical persons into government agencies, it is evident that, prior to the amendment of the Irrigation Act in 2020, the Executive Yuan had already proposed amendments to the Act of Irrigation Association Organization to facilitate such a transformation. These amendments were passed by the Legislative Yuan on January 17, 2018, and promulgated by the President on January 31 of the same year. In particular, Article 40, Paragraphs 1 and 2 of the Act provide for the suspension of elections for affairs commissioners and the president, the shortening of existing terms, and the designation of acting presidents during the transitional period in the event of vacancies. Paragraph 3 of the same Article further provides that the reorganization of Irrigation Associations, the handling of their assets, and the protection of staff employment rights shall be governed by separate legislation. The legislative rationale for each of these provisions explicitly states: “Irrigation Associations are to be reorganized as government agencies.” Moreover, Article 17, Paragraph 1 first sentence of the Irrigation Act provides: “The competent authority may, based on local irrigation needs, establish water irrigation groups within the area of irrigation undertakings.” In addition, Disputed Provisions 2, 3, and 4 authorize the competent authority to establish irrigation organizations and designate personnel. These provisions, taken together, provide regulated parties with clear notice that the purpose of the legislative amendments was to reorganize the Irrigation Associations into government agencies. Therefore, there is no violation of the principle of legal clarity.
(3) While Article 12, Paragraph 1 of the Water Act provides: “The competent authority may, in light of regional needs, approve the establishment of Irrigation Associations to assist the government in carrying out farmland irrigation undertakings,” and Paragraph 2 provides: “The Irrigation Associations referred to in the preceding paragraph shall be public juridical persons; general principles governing their organization shall be separately prescribed,” it is true that these provisions have not been amended. However, under the above provisions, the establishment of Irrigation Associations must be based on the Act of Irrigation Association Organization. The Irrigation Act constitutes a special law in relation to the Water Act and was enacted later in time; thus, its provisions take precedence over those of the Water Act. Pursuant to Article 34, Paragraph 2 of the Irrigation Act, promulgated and enforced on July 22, 2020: “From the date of enforcement of this Act, the Act of Irrigation Association Organization shall no longer apply.” Since the Act of Irrigation Association Organization that served as the legal basis for the establishment of Irrigation Associations is no longer applicable, and such associations have now been incorporated as part of the administrative apparatus, their status as public juridical persons has likewise ceased to exist.
3. Disputed Provisions 1 and 7 do not give rise to an issue of infringement upon the freedom of association guaranteed to former members of the Irrigation Associations under Article 14 of the Constitution.
(1) Article 14 of the Constitution guarantees people the freedom of association. This right is intended to protect the individual’s freedom to form groups with others for specific purposes, to participate in the activities of such groups based on a shared intent, and to ensure the group’s continued existence, its autonomy in internal organization and affairs, and its freedom in external activities (see Judicial Yuan Interpretations Nos. 479 and 733). The scope of freedom of association is limited to protecting the individual’s freedom to establish or not establish a private-law association, and to join or not join such an association. It does not include the freedom to form a public juridical person with the power to exercise public authority. Under a constitutional democratic system, the acquisition and exercise of public authority in order to perform public functions must originate, either directly or indirectly, from the authorization of the people—for example, through direct election of national and local public officials, through legislation enacted by elected legislators or local council members governing the exercise of public power, or through the exercise of confirmation powers on behalf of the people. With respect to the acquisition of status as a public juridical person, the Constitution does not prohibit the legislature from establishing specific public juridical persons by direct legislation, or from setting out statutory criteria for their formation. However, this does not imply that individuals may, by virtue of the freedom of association protected under Article 14 of the Constitution, directly establish a public juridical person. The Irrigation Associations were public juridical persons established pursuant to statutory law, not entities created by individuals exercising their freedom of association under Article 14 of the Constitution. Therefore, Disputed Provisions 1 and 7—which reorganize the Irrigation Associations into government agencies and extinguish their juridical person status—do not infringe the freedom of association guaranteed to former members under Article 14 of the Constitution.
(2) The Irrigation Associations were public juridical persons established pursuant to statutory law, not associations formed by individuals in the exercise of their freedom of association under Article 14 of the Constitution. Accordingly, Disputed Provisions 1 and 7, which reorganize the Irrigation Associations into government agencies and extinguish their status as public juridical persons, do not infringe the freedom of association guaranteed to former members under Article 14 of the Constitution.
4. Disputed Provisions 5 and 6 do not give rise to an issue of infringement upon the property rights protected under Article 15 of the Constitution.
(1) The property of a public juridical person is not subject to the protection of property rights under the Constitution.
A. The Constitution serves as a charter for the protection of the rights of the people. Its core purpose is to safeguard individual rights, and to that end, it grants various powers to state organs while employing a system of separation of powers to prevent the excessive concentration of governmental authority, which could otherwise infringe those rights. The reason individuals must be guaranteed a range of fundamental rights is that, as human beings, they are entitled to freely develop their personality and pursue their own interests. In contrast, the State, which exists to serve the people, by its very nature cannot possess a personality capable of free development, nor can it pursue private interests in the same way individuals can. The State is bound to pursue the public interest and is tasked with fulfilling public duties. Accordingly, the State itself cannot be the bearer of fundamental rights such as the right to property under Article 15 of the Constitution. Since public juridical persons exist to share in the performance of state functions, any property acquired by them in their capacity as such is likewise not subject to the protection of property rights under Article 15 of the Constitution.
B. The manner in which a public juridical person registers or records its property in accordance with government regulations does not alter the public nature of such property. Furthermore, although public juridical persons may engage in private-law transactions—such as sales or leases—when generating revenue from or disposing of their assets, and such transactions may produce legal effects under private law, this does not change the nature of the acquired property, which remains public property.
(2) The Property of Water Irrigation Associations in Taiwan During the Japanese Colonial Period Was Public Property
A. During the Japanese Colonial Period, Water Irrigation Associations in Taiwan Held Property Independently in Their Own Name as Juridical Persons, Rather Than as Collectively Owned by Their Members
It should first be noted that although Taiwan’s water irrigation association system during the Japanese colonial period was modeled after the legal system in mainland Japan, the two were fundamentally different due to historical and contextual factors. In mainland Japan, civil organizations—such as ōaza water use groups and land improvement associations (suiri dogōkai)—had long existed, formed by villages or residents for the collective use of natural resources such as forests, pastures, rivers, and lakes. The methods for utilizing such resources were rooted in established local customs. In many cases, multiple residents held co-ownership of the subject resources; in others, the ownership was not shared in the legal sense but collectively held by the group as a whole. Management and disposal of such resources had to be carried out by all members collectively, and the legal forms of ownership were diverse. After the Water Irrigation Association Ordinance was enacted in 1890, some of these organizations were converted into juridical persons, while others retained their original nature as nyūkai dantai (entry associations). Where organizations were transformed into juridical persons, ownership of the subject property was separated from the individual members and vested in the juridical person itself. In contrast, those that remained as nyūkai dantai continued to exist in a form where collective rights were held by the members as a group. The management and disposal of property belonging to such associations required unanimous consent of all constituent members, and was distinct from general co-ownership under civil law. For this reason, legal scholars referred to it as sōyu (collective ownership). Under Japanese civil law, Articles 263 and 294 still distinguish between nyūkai rights that have the nature of co-ownership and those that do not, with the corresponding rules on ownership applied or applied mutatis mutandis depending on local custom.
However, the manner in which Taiwanese farmers utilized water resources differed significantly from the situation in mainland Japan. In Taiwan, there were no nyūkai dantai (entry associations) formed on the basis of shared water resource use. Prior to the implementation of the public irrigation system, water usage involved landowners or tenant farmers who required irrigation paying irrigation fees (water rent) in exchange for access to irrigation water from canals operated by private canal owners. After the establishment of Public Ponds and Canals System Associations or Water Irrigation Associations, the private canal owner was merely replaced by an association with juridical person status. Landowners or tenant farmers requiring water continued to pay irrigation fees (association dues) or other charges in exchange for the use of water drawn through irrigation canals managed by the association. Although the legal relationship between the parties shifted from a contractual or customary basis to one governed by public law, it was not founded on any collective need for shared water usage between the landowners or tenant farmers and the original canal operator. Moreover, those landowners or tenant farmers had no private-law rights in the irrigation canals themselves. This stands in clear contrast to the Japanese nyūkai dantai, in which members collectively held rights to the subject property.
B. Property Acquired in the Capacity of a Public Juridical Person Constitutes Public Property
In accordance with the constitutional protection of property rights, the State may not, by enacting legislation that confers public juridical person status on an existing private juridical person, acquire that entity’s preexisting property without compensation. However, property acquired at the time of, or subsequent to, the establishment of a public juridical person—by virtue of its status as such—must be regarded as property obtained for the purpose of serving the public interest, and therefore constitutes public property.
C. The Property of Water Irrigation Associations in Taiwan During the Japanese Colonial Period Constituted Public Property
As previously noted, Water Irrigation Associations were public juridical persons, and their assets were inherited through the transformation or consolidation of Public Ponds and Canals System Associations, Government-Established Ponds and Canals System Associations, and other water-related associations. The assets originating from Government-Established Ponds and Canals System Associations were unquestionably public property. Even those acquired during the periods when the associations operated as Public Ponds and Canals System Associations or Water Irrigation Associations were obtained at the time of, or after, the establishment of the association by virtue of its status as a public juridical person, and therefore likewise constituted public property. With respect to the sources of property acquired by the association, such property was obtained on the basis of its public juridical person status, regardless of whether it derived from: (1) Voluntary donations or contributions made without compensation by the original canal operators, landowners (owners of irrigated land), tenant farmers, or other individuals or organizations; (2) Irrigation works expropriated or constructed by the Japanese government and transferred or granted to the association without compensation; (3) Membership contributions, irrigation fees, charges, or labor duties collected pursuant to law; (4) Subsidies provided by the Japanese government; (5) Revenue generated by the association from the operation of irrigation systems; (6) Loans obtained by the association from institutions such as the Nippon Kangyō Bank; (7) Property such as land and buildings acquired through purchase or compensation payments made by the association. All such assets were acquired in the capacity of a public juridical person and therefore constitute public property. Neither the original rights holders nor the members of the association were entitled to claim private rights in such property.
In other words, when the original rights holders or owners transferred property to the association, the nature of the property changed from private to public, and the former owners or rights holders could no longer assert their prior rights over the transferred property. Moreover, individuals required by the association’s bylaws or relevant laws to pay membership contributions, irrigation fees, other charges, or to provide labor services, did so as consideration for the use of irrigation water. These payments or services constituted the fulfillment of obligations prescribed by law or the association’s rules, entitling such individuals only to the right to use the irrigation system—without conferring any proprietary rights in the irrigation canals or facilities owned by the association. Government subsidies and revenue generated by the association from operating the irrigation system were likewise assets acquired by the association in its capacity as a public juridical person. Land and buildings acquired by the association through purchase or compensation payments were obtained using funds held by the association as a public juridical person. Such property was unrelated to the association members. Neither the laws nor the association’s bylaws granted members any right to claim a distribution of profits or surplus. Therefore, it cannot be said that the members had any legally protected property rights in the assets of the association.
(3) The Property of Water Irrigation Associations in Taiwan During the Japanese Colonial Period Was Taken Over by the Government as Public Property
A. After World War II, under the Kuomintang’s tutelary system, the Republic of China undertook the postwar reception of Japanese properties in Taiwan based primarily on the “Taiwan Takeover Plan Outline,” which was amended and approved by the KMT Chairman on March 14, 1945 (Document No. 15493). According to this outline, along with subsequent regulations such as the “Regulations on the Disposition of Public Land in Taiwan Province” promulgated by the Taiwan Provincial Administrative Executive Office on April 22, 1946, and the “Taiwan Provincial Land Rights Clearance Measures” issued by the Executive Yuan on November 28, 1947, the government took over the following as public property: Japanese government-established or publicly operated irrigation agencies during the colonial period, assets in Taiwan owned by Japanese nationals, agricultural, forestry, fishery, and livestock property interests owned solely or jointly by Japanese and Taiwanese nationals, irrigation works, private land owned by Japanese nationals, government-owned or public land during the Japanese occupation, including paddy fields, dry fields, ponds, fish farms, and other lands designated as public due to their use—such as those originally owned by prefectures or municipalities or purchased with public funds by the Governor-General’s Office or its affiliated agencies, or land designated as riverine or used for constructing irrigation ditches and other public infrastructure. All of the above were included in the scope of postwar takeover and became property of the Republic of China. Lands donated, gifted, or “entrusted” by the people to public agencies during the Japanese period were likewise not subject to restitution.
B. Starting from November 1, 1945, the Agricultural and Forestry Department of the Taiwan Provincial Administrative Executive Office began the official takeover of water conservancy operations from the Japanese colonial era. The takeover included both institutions and operations. However, due to a shortage of personnel in the early stages, operations came to a temporary halt. To resume and advance agricultural water management, the provincial government both mobilized local professionals familiar with irrigation affairs and dispatched personnel to various counties to assist local farmland divisions and the 38 existing irrigation associations in repairing disaster-damaged infrastructure and collecting water fees. Additionally, in coordination with the county farmland divisions, well-known local figures were selected to serve as heads or directors of the irrigation associations to restore order, reassure the public, and maintain the existing facilities. This shows that the assets and operations of the 38 Japanese-era irrigation associations had been formally taken over by the government in accordance with the law. The assets became public property, and the operations, since there were no existing regulations for establishing new public irrigation organizations (unlike farmers’ associations), were allowed to continue under the pre-existing Japanese system based on Article 9, Clause 1 of the Taiwan Takeover Plan, which provided: “Where no legal provision exists but the agency is deemed necessary in practice, it may be temporarily retained.” Thus, irrigation operations continued without interruption under the framework of the Japanese-era irrigation associations.
(4) The state’s general succession to the assets of the Irrigation Associations does not violate the property rights guaranteed under Article 15 of the Constitution
A. As stated above, following the Nationalist government’s takeover, although the operational model of Taiwan’s irrigation organizations varied over time—sometimes led directly by administrative authorities, sometimes governed by member autonomy, and at times a combination of both—such organizations always functioned pursuant to government regulations, sharing certain responsibilities of the state. After the 1955 amendment to the Water Act, these organizations were further granted the status of public juridical persons. Their assets—whether derived from the takeover of Japanese property, or collected in accordance with law from their members in the form of construction, management, and maintenance fees, project cost-sharing payments, late penalties, membership dues, fees for use of structures and surplus water, donations and gifts, government subsidies, or other lawful revenues, or even from land expropriated for construction projects—were all obtained on the basis of their status as public juridical persons and thus constitute public property. As explained earlier, such property is not protected under Article 15 of the Constitution. Therefore, Disputed Provisions 5 and 6, which stipulate that all property of the Irrigation Associations shall be generally succeeded by the state and incorporated into the operational fund for agricultural irrigation undertakings, to be used for the continued promotion of irrigation affairs, do not infringe any constitutionally protected property rights of the Irrigation Associations.
B. Moreover, how to handle property that was actually used by the irrigation associations but was not owned by them—for instance, property occupied without legal title or property over which the association held only usage rights but not ownership—is beyond the scope of this judgment. Furthermore, after incorporation into government agencies, the original irrigation canals and systems have continued to operate, and the farmers’ rights and access to irrigation remain unaffected.
5. The Disputed Provision 7 does not violate the principle of non-retroactivity of law nor the principle of protection of legitimate expectations.
(1) As a general principle, newly enacted laws that impose restrictions or deprive individuals of rights, or that increase legal obligations, shall not apply to facts or legal relationships that were already concluded before the law came into force. Furthermore, when individuals have undertaken certain actions in reliance on existing laws or administrative measures, the interests arising from such reliance should be protected by the state. This embodies the principles of prohibition of retroactive application of laws and protection of legitimate expectations.
(2) A public juridical person is a legal entity established under public law for the purpose of realizing public welfare and performing national functions. In carrying out its public functions and exercising public authority, a public juridical person acts as an extension of the state’s administrative power; it does not independently acquire powers outside of the state’s administrative authority. Given that public juridical persons exist to implement public law mandates, their missions are to concretely enforce legal provisions. When laws are amended, their duties change accordingly. Therefore, no legally protectable interest arises from any expectation that the existing legal framework will remain unchanged. The state may, based on policy considerations relevant to the overall operation of its administrative authority, establish, dissolve, expand, or restrict the functions of a public juridical person. Such entities, being subject to adjustment by the state, may not assert violations of fundamental rights in resistance, nor can they claim violations of the principles of non-retroactivity or protection of legitimate expectations.
(3) Since Irrigation Associations are public juridical persons established pursuant to law, based on the aforementioned reasoning, the state—pursuant to policy considerations related to the overall operation of administrative power—may, through the enactment of the Disputed Provision 7, exclude the application of the provisions under the Act of Irrigation Association Organization, revoke the legal basis and authorization for their establishment as public juridical persons, restore the originally delegated public authority to direct exercise by administrative agencies, and continue to perform the original duties using assets that were publicly owned. This does not give rise to any issue of retroactive application of law or violation of the principle of protection of legitimate expectations.
3. The Disputed Provisions 2, 3, and 4 Do Not Violate Paragraphs 3 and 4 of Article 3 of the Additional Articles of the Constitution
(1) Paragraph 3 of Article 3 of the Additional Articles of the Constitution stipulates: “The powers, procedures of establishment, and total number of personnel of national organizations shall be subject to standards set forth by law.” Paragraph 4 of the same Article stipulates: “The structure, system, and number of personnel of each organization shall be determined according to the policies or operations of each organization and in accordance with the law as referred to in the preceding paragraph.” These provisions authorize the legislature to enact framework legislation concerning the construction of the state administrative system, allowing decisions regarding the organization, structure, and staffing of various agencies to be made within such a legal framework, thereby facilitating comprehensive planning and deployment of state institutions. The above provisions grant the legislature general and structural legislative authority over administrative organization in addition to its authority to enact specific organizational laws for individual agencies. However, they do not deprive the legislature of the power to enact stand-alone organizational laws or laws containing organizational provisions. Nor do they imply that legislation concerning administrative organization would be unconstitutional simply because it does not conform to the provisions of laws of the same hierarchical status that serve as general frameworks. (See Judicial Yuan Interpretation No. 793 for reference.)
(2) For agencies with relatively simple operational functions, it is not necessarily practical to require the separate enactment of an organizational act and a functional act concerning their organization and operations. Therefore, the legislature, based on the policy determination that the reorganization of the Irrigation Associations and the handling of their assets as well as the protection of personnel rights and interests necessitate special legislation, and taking into account the overall regulatory needs and effectiveness for achieving the objectives of the Irrigation Act, explicitly stipulated in the Disputed Provisions 2, 3, and 4 the establishment of irrigation management organizations, the scope of their operations, and personnel-related matters of the irrigation enterprises. This can hardly be said to contradict the provisions of Paragraphs 3 and 4, Article 3 of the Additional Articles of the Constitution. Furthermore, regarding the personnel management of irrigation staff, where the Regulations of Personnel Management Regulations for Irrigation Staff contain no specific provisions, such matters are handled only by reference to, not in accordance with, the laws and regulations governing civil service personnel management (see Article 80 of the said Regulations). It is therefore evident that irrigation staff are not appointed as civil servants, and the formulation of relevant personnel management regulations does not fall within the jurisdiction of the Examination Yuan. Hence, there is no infringement upon the constitutional powers of the Examination Yuan.
(3)According to Article 36, Paragraph 1 of the Basic Act of Organizations, “In response to critical emergencies and urgent or extraordinary or emerging developments and situations, first-level agencies may establish temporary or transitional agencies, whose organizations shall be governed by provisional organic regulations that stipulate the existence period of the agency.” Paragraph 2 of the same article provides, “Second-level and third-level agencies may establish temporary or transitional agencies mentioned in the preceding paragraph after obtaining approval of their first-level agency.” The Executive Yuan is currently in the process of amending relevant laws to adjust functions, duties, and organizational structures, but such amendments have not yet been completed. Thus, the competent authority for matters concerning irrigation cannot yet be expressly stipulated by law. Nevertheless, as irrigation is essential to the efficiency of national agricultural irrigation and the sound development of agricultural policy, its management and operation cannot be suspended even for a single day. To meet practical needs, the establishment of a transitional agency prior to completion of the legal amendment is indeed necessary. With the approval of the Executive Yuan, the Council of Agriculture issued the “Provisional Organizational Regulations for the Irrigation Agency under the Council of Agriculture, Executive Yuan,” the “Implementation Regulations of Irrigation Agency under the Council of Agriculture, Executive Yuan,” and the “Personnel Establishment Table for the Irrigation Agency under the Council of Agriculture, Executive Yuan.” These provide the basis for establishing the Irrigation Agency to handle farmland irrigation affairs. These regulations were approved and promulgated by Executive Yuan Letter Yuan-So-Ren-Zu-10961000421 of August 7, 2020, and submitted to the Legislative Yuan for record. Article 6 of the aforementioned Provisional Organizational Regulations also expressly states: “This Agency shall be dissolved upon the establishment of the Department of Agriculture’s Irrigation Agency,” thus specifying the duration of the agency’s existence. It is therefore evident that the Irrigation Agency is a transitional agency. Its establishment, along with that of its affiliated Irrigation Management Offices, is already provided for under the organizational law and conforms to Article 36, Paragraph 2 of the Basic Act of Organizations. It is difficult to conclude that there has been any violation of the principle of Gesetzesvorbehalt for the organization of administrative agencies, as asserted by the petitioners.
(4) Although the petitioners submitted additional arguments after the oral proceedings, asserting that, pursuant to Articles 107 through 110 of the Constitution, irrigation is a matter exclusively within the jurisdiction of local governments and that the provisions of the Irrigation Act violate the aforementioned constitutional provisions, this argument is unsubstantiated. According to Article 108, Paragraph 1, Subparagraph 10 of the Constitution, water irrigation, rivers, and agricultural or pastoral enterprises involving more than two provinces shall be legislated and implemented by the central government, or entrusted to the provincial or county governments for execution. Article 109, Paragraph 1, Subparagraph 6 stipulates that matters related to agriculture, forestry, and water irrigation at the provincial level shall be legislated and executed by the provinces or entrusted to counties. However, pursuant to Article 9, Paragraphs 1 and 3 of the Additional Articles of the Constitution, promulgated on July 21, 1997, the provisions of Article 109 of the Constitution are suspended. Matters concerning provincial and county government structures are to be governed by law, and adjustments to the functions, duties, and organization of the Taiwan Provincial Government may be specifically prescribed by law. Accordingly, Article 4, Paragraph 4 of the Temporary Act for the Adjustment of Functions, Duties, and Organization of Taiwan Provincial Government, enacted on October 27, 1998, and effective as of December 21 of the same year, provides: “The water resource affairs under the jurisdiction of agencies formerly subordinate to the provincial government, if deemed inappropriate to be divided among ministries due to overall considerations, shall, prior to the completion of amendments to the Organizational Act of the Executive Yuan and related laws, be collectively managed by ministries designated by the Executive Yuan, and shall not be subject to limitations under other laws.” Paragraph 5 of the same article stipulates: “With respect to matters governed or executed by the Taiwan Provincial Government under existing laws and central regulations, pending the revision of relevant statutes, the Executive Yuan may, pursuant to Paragraph 1, reassign such powers and duties by administrative orders.” In addition, Article 2, Subparagraph 1 of the Local Government Act, enacted and promulgated on January 25, 1999, states that the Taiwan Provincial Government is an agency dispatched by the Executive Yuan and that the province is no longer a self-governing local entity. Based on the content of the aforementioned Additional Articles and the Local Government Act, the authority over water irrigation matters originally listed under Article 109, Paragraph 1, Subparagraph 6 of the Constitution has been transferred to the central government. This legal framework has been maintained in subsequent constitutional amendments, including the amendment of April 25, 2000, and in various amendments to the Local Government Act thereafter. Although the Temporary Act for the Adjustment of Functions, Duties, and Organization of Taiwan Provincial Government was repealed on December 31, 2005, it does not affect the fact that the authority originally designated under Article 109, Paragraph 1, Subparagraph 6 of the Constitution remains with the central government. In line with the constitutional amendments and restructuring of provincial functions, the legislature also fully amended and promulgated the Act of Irrigation Association Organization on May 17, 2000, revising Article 22 to transfer the supervisory authority over irrigation associations from the provincial to the central government. Therefore, the enactment of the Irrigation Act by the central government, and the incorporation of irrigation organizations into administrative agencies, does not contravene the aforementioned constitutional provisions.
7. The petition for a provisional injunction should be dismissed.
Given that the present case has already been adjudicated and no necessity for provisional measures exists, the petition for a provisional injunction shall be dismissed.
V. Conclusion
In conclusion, Disputed Provisions 1 and 5, which transform the Irrigation Associations into government agencies, do not contravene the principle of clarity and definiteness of law. Disputed Provisions 1 and 7 do not infringe the freedom of association protected under Article 14 of the Constitution for former members of the Irrigation Associations. Disputed Provisions 5 and 6 do not violate the property rights safeguarded by Article 15 of the Constitution. Disputed Provision 7 does not contravene the principles of non-retroactivity of law or the protection of legitimate expectations. Disputed Provisions 2, 3, and 4 do not violate Paragraphs 3 and 4 of Article 3 of the Additional Articles of the Constitution. The petition for provisional measures shall be dismissed.
In summary, since the implementation of the public irrigation system in 1901 during the Japanese colonial period, Taiwan’s agricultural irrigation organizations have undergone various operational models, including public irrigation, public ponds and canals associations, government-established ponds and canals, and water irrigation associations. After being taken over by the Nationalist Government, these organizations have continued to evolve, operating under different models such as water irrigation associations, agricultural irrigation associations, water irrigation committees, and various forms of irrigation associations. From a constitutional perspective, whether organized as public juridical persons or government agencies, these structures represent policy choices made in response to changing times and circumstances. The appropriateness of such choices falls within the realm of political judgment, rather than constituting an issue of constitutionality.