Tue, Sep 04, 2012 - Page 3 News List

Data act implementation unconstitutional: experts

EXECUTIVE ORDER:The academics said that the Cabinet’s decision to have the Data Protection Act take effect in two stages violates the principle of separation of powers

By Chris Wang  /  Staff reporter

Taiwan Democracy Watch director Hsu Wei-chun, second right, Democratic Progressive Party Legislator Wu Yi-chen, third right, and social activists accuse the government of violating the Constitution by implementing the Personal Data Protection Act in several phases, at the Legislative Yuan in Taipei yesterday.

Photo: CNA

The Executive Yuan’s decision to implement the Personal Data Protection Act (個人資料保護法) in two stages was unconstitutional and stands in contempt of the Legislative Yuan, academics and civic groups said yesterday.

“The decision has violated the principle of separation of power of the five branches enshrined in the Republic of China Constitution,” Taiwan Democracy Watch (TWDEM) director Hsu Wei-chun (徐偉群) said.

The Cabinet proposed revisions to four articles of the Personal Data Protection Act and decided that the legislation would take effect in two stages.

Approved by the legislature in April 2010, the act was promulgated by President Ma Ying-jeou (馬英九). However, it has yet to take effect because of controversies surrounding the revisions of four articles, which the Ministry of Justice has said would be difficult to implement and have not been approved.

Chiu Wen-tsun (邱文聰) of the Taiwan Association for Human Rights said that the Executive Yuan should have demanded a redrafting of the legislation if it thought it was difficult to implement.

The revision to Article 54 suggested removing the requirement that says financial institutions must inform individuals about the personal information they have that individuals have not provided within one year after the act takes effect. The revision stipulated instead that financial institutions would be mandated to inform individuals of the data they possess if they use or process the information.

The Cabinet revised Article 41 of the act by removing criminal penalty for violations of certain articles of the act when the irregularities were not conducted for the purpose of profit.

Chiu said the revised Article 54 makes it too easy for an institution to get by while the Article 41 only punishes the ones who provide or sell personal information, but not the ones who collect and handle information.

An additional clause also allows certain forms of information collection that “promotes public interests,” which would be “a blank check allowing undue data collection,” Chiu said.

Democratic Progressive Party (DPP) Legislator Wu Yi-chen (吳宜臻) and former DPP legislator Huang Shu-ying (黃淑英) both condemned the administration’s “selective implementation of laws,” saying that would be an infringement of the legislative branch.

“If the administrative branch can choose which part of the legislation to implement, then we don’t need a Legislative Yuan at all,” Huang said, adding that allowing the Executive Yuan to do so would “open a Pandora’s box” because every government agency would follow its example and begin to ignore legislation at will.

Chen Wei-lien (陳維練), director of the justice ministry’s Department of Legal Affairs, said the ministry would like to see the entire law implemented.

“However, certain parts of the legislation are vague and difficult to define and therefore hard to implement,” he said.

Chen added that Taiwan could become the country with the strictest laws on personal information protection in the world under the current proposals.

If the definition and regulation was not clear enough, there would be many controversies once the law is implemented, he said.

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