Note: 
This summary constitutes no part of the Judgment but is prepared by the Department of Clerks for the Constitutional Court only for the readers’ reference.
Original paragraph numbers that the summarized texts correspond to are put into lenticular brackets after each paragraph.

Headnotes

In this Judgment, the Taiwan Constitutional Court (TCC) upheld the constitutionality of Article 6, Paragraph 3, Subparagraph 4; Article 7, Paragraph 1, Subparagraph 4; and Article 8 of the Civil Service Performance Evaluation Act. By elaborating on the distinction between the legal institutions of discipline and punishment of civil servants, the TCC ruled that the provisions authorizing the administrative agencies to dismiss civil servants based on their performance evaluations are in accordance with the constitutional principle of separation of powers and not in violation of the people’s right to hold public offices. 

Background Note

The petitioner is the Fifth Panel of the Taipei High Administrative Court. In hearing the case concerning the dismissal of a civil servant, the petitioner believed that the pertaining Article 6, Paragraph 3, Subparagraph 4; Article 7, Paragraph 1, Subparagraph 4; Article 8 of the Civil Service Performance Evaluation Act, and Article 3, Paragraph 3, Subparagraph 7 of the Administrative Procedure Act are in violation of Articles 18 and 77 of the Constitution. Article 77 of the Constitution conferred the Judicial Yuan with the competence to decide on disciplinary measures against civil servants. However, the disputed provisions have granted the executive branch the competence of punishing civil servants based on their performances. The petitioner, therefore, suspended the trial proceedings and lodged a petition for constitutional review in June 2020. 

Summary of the Judgment 

Holding

Article 6, Paragraph 3, Subparagraph 4 of the Civil Service Performance Evaluation Act (hereinafter the “disputed provision I” and “CSPEA”) stipulates that “Unless otherwise stipulated in this Act, evaluation subjects to whom none of the following conditions apply during the year under evaluation shall not receive a grade of D: … 4. Persons guilty of conduct unbecoming, or who violate related legal prohibitions causing serious harm to the reputation of civil servants, for whom tangible evidence exists.” Article 7, Paragraph 1, Subparagraph 4 of the CSPEA (hereinafter the “disputed provision II”) stipulates that “Annual performance rating rewards and penalties shall be administered in accordance with the following provisions: … 4. Grade D: dismissal from employment.” Article 8 of the CSPEA (hereinafter the “disputed provision III”) stipulates that “Concerning rewards and punishments for additional performance ratings…persons rated Grade D are dismissed from employment.” The stated provisions conform to Articles 18 and 77 of Constitution, in which the former guarantees the right to hold public offices, and the later stipulates that “the Judicial Yuan shall be the highest judicial organ of the State and shall have charge … over cases concerning disciplinary measures against civil servants.”

Reasoning

1. The disputed provisions I, II, and III, which empower the administrative agencies (or executive authorities) to dismiss civil servants with a D grade in their performance evaluation, are not in conflict with Article 77 of the Constitution.【18】

A. Empowering the administrative agencies to dismiss civil servants is in accordance with the principle of separation of powers under the Constitution.【19】

An administrative authority cannot function without the power of supervision over its personnel, as it is the indispensable core competence of the executive power. In our legal system, a dismissal generally refers to the termination of an individual civil servant's current position, including dismissal due to punishment or disciplinary action, dismissal due to other reasons, or resignation. After dismissal, the chief executive no longer has the power to supervise individual civil servants. In other words, the competence over personnel starts with the appointment of civil servants and ends with their dismissal, both are quintessential personnel matters. Based on the doctrine of the unitary executive (or the principle of administrative unity) and the principle of responsible government (or the principle of responsibility in government), the chief executive must have certain authority over the civil servants in order to carry out tasks and achieve administrative objectives. Although the law provides general provisions regarding the qualifications, procedures, and effects of the appointment and dismissal of civil servants, it cannot completely deprive the administrative agency of the power of appointment and dismissal, otherwise, it will infringe upon the core personnel power of the administrative agency.【23】

In terms of carrying out government policies, the cooperation between superiors and subordinates, and ensuring the principle of the unity of executive power, the competence of dismissal (of civil servants) is even more important than the competence of appointment. Especially for posts in the civil service that have qualification requirements, the employing agency may not be unable to choose the most suitable freely. Still, if the employing agency cannot legally remove unsuitable civil servants on the account of poor performance, illegal activities, or incompetence, it will inevitably affect administrative efficiency and even hinder the achievement of administrative objectives. Compared with the power of appointment, the competence of dismissal is more effective in exercising direction and supervision. It is an inherent and core executive power that cannot be deprived.【24】

The annual performance evaluations for civil servants, established through the disputed provisions, are a major part of the administrative agencies’ personnel authority. In particular, routine evaluations (including annual evaluations) are necessary mechanisms for administrative agencies to command, supervise, and remove unsuitable civil servants. Since routine evaluations are based on a comprehensive assessment of the civil servants' performance throughout the year, and considering that the supervising officers and the chief executive usually have the best understanding of the operational needs of the agency and the work, conduct, knowledge, capability, and performance of each civil servant, the administrative department should be the most suitable decision-making agency and more appropriate for making the initial judgment, either organizational-wise or procedural-wise. Compared with the executive branch that supervises the personnel, although the court has legal expertise, it may not be as familiar with the implementation of various administrative tasks as administrative agencies do. Moreover, the primary function of the court is to provide external ex post facto remedy, which is limited to the review of legality instead of the review of appropriateness or whether the action achieves its purpose. Therefore, whether organizational-wise, procedural-wise, or professional-ability-wise, administrative agencies should at least be the main agency for exercising the competence of dismissal. It is factually difficult and inappropriate for the court to completely replace the administrative agencies and become the first decision-making body for dismissals based on performance evaluations.【26】

To conclude, in the spirit of constitutional interpretation, it should be recognized and guaranteed that administrative agencies have the competence to evaluate and dismiss their personnel based on reasons specified by law and under significant circumstances (including incompetence, serious hindrances to the effective execution of public duties, or other serious misconducts), through due process of law. It would contradict the principle of funktionsgerecht Organstruktur (literally, the principle of “functional organizational structure”, which suggests a functional allocation of powers for the competent authority to achieve its objectives) and violate the principle of separation of powers under the Constitution, if the administrative agencies are deprived of the competence to dismiss civil servants entirely.【27】

Although the power to dismiss is a core competence of the executive branch, it is not unlimited. To improve the civil service and protect the right to hold public office, the legislator may enact laws to stipulate the grounds for dismissal and the required legitimate legal procedures. The dismissed civil servant may also request judicial remedies in accordance with the law to check administrative discretion. However, such legislative restrictions must not completely strip the administrative agency of its competence of dismissal or transfer such competence to other agencies; otherwise, it will infringe upon the core of the executive power, undermine the principle of responsible government, and lead to the imbalance of checks and balances.【29】

B.    Empowering the administration to dismiss civil servants is not in conflict with Article 77 of the Constitution.【31】

In accordance with the current regulations, the cause for discipline and punishment often overlap, but their purposes and effects are different. In terms of effect, the current Civil Service Disciplinary Act (hereinafter “CSDA”) stipulates that dismissal, not only relieves civil servants from their current position but also has the effect of prohibiting them from being re-employed as a civil servant. The CSDA also stipulates that revocation of employment not only revokes their current position but also has the effect of suspending their employment for a certain period. On the other hand, the dismissal stipulated in the CSPEA only has the effect of dismissing the person from their current position without fundamentally depriving them of their civil servant qualifications.【33】

Both the legal institutions for discipline and punishment of civil servants can be traced back to the Period of Political Tutelage of the Republic of China. They are inherently different systems and have been implemented continuously in a parallel manner after the implementation of the Constitution. Both the original meaning of the Constitution and the provisions from the constitutional amendments do not state whether Article 77 of the Constitution implies the principle of unification of disciplinary measures (which means only the judicial branch possesses the competence of disciplinary), nor do they prohibit administrative agencies from exercising the power of administrative punishment with the effect of dismissal. The past J.Y. Interpretations also acknowledge that both the executive and judicial branches may make decisions that result in dismissal or similar effects.【34】

Article 77 of the Constitution stipulates that "the Judicial Yuan shall be the highest judicial organ of the State and shall have charge of civil, criminal, and administrative cases, and over cases concerning disciplinary measures against public functionaries." However, in viewing historical references to the drafting of the Constitution, the National Constituent Assembly at the time established this provision to avoid the Control Yuan proposing and adjudicating impeachment cases simultaneously. Therefore, the competence to discipline civil servants after an impeachment case was brought against him or her has been transferred from the Control Yuan to the Judicial Yuan. The Constitution clearly designates in Article 77 that disciplinary measures against civil servants as the responsibility of the Judicial Yuan. The intention in this article is only to use judicial discipline as an external check and balance mechanism on the Control Yuan's impeachment power, and to prevent the Control Yuan from playing the dual role of the player and the referee in an impeachment case. It has nothing to do with the parallel mechanism of administrative punishment of civil servants. In other words, the "disciplinary measures against public functionaries" as stipulated in Article 77 of the Constitution shall not be interpreted to include administrative punishment pursuant to performance ratings, nor is the court required to serve as the first decision-making body for punishment and disciplinary measures against civil servants.【37, 39】

2.    The disputed provisions do not contradict the right to hold public offices enshrined in Article 18 of the Constitution.【47】

The dismissal of unsuitable civil servants under the disputed provisions is to implement the doctrine of the unitary executive (or the principle of administrative unity) and enhance administrative efficiency, which can be seen as compelling public interest. Moreover, under systematic interpretation, the pertaining administrative agency may only dismiss the civil servant with a Grade D performance rating when he or she meets the requirements of “guilty of conduct unbecoming, or … violate related legal prohibitions causing serious harm to the reputation of civil servants, for whom tangible evidence exists” under the disputed provision I, or under Subparagraphs 1, 2, and 3 of the same provision. The restriction imposed by the disputed provisions are substantially related to their purposes, hence not in violation of the right to hold public offices enshrined in Article 18 of the Constitution.【49】