Mon, Feb 15, 2016 page8

• ‘Livelihood bills’ need clarification

  • By Chien Chien-jung 錢建榮
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  On the day she was elected president, Democratic Progressive Party (DPP) Chairperson Tsai Ing-wen (蔡英文) said that the new legislature dominated by the DPP would focus on pushing “livelihood bills.” However, what exactly does she mean by “livelihood bills”? Tsai cited the Act Governing Food Safety and Sanitation (食品安全衛生管理法) that was amended more than 10 times in the past few years, but the problem of the act lies in its poor implementation.

  Is the president-elect aware that the Road Traffic Management and Penalty Act (道路交通管理處罰條例) states that if a driver refuses to take an alcohol test for an offense, all types of driver licenses under their name can be revoked, regardless of the seriousness of the offense? This is a violation of professional drivers’ right to work, or even their right to live. Although Constitutional Interpretation No. 699 suggests that the act be reviewed, the legislature has ignored the suggestion.

  Next, the Crime Victim Protection Act (犯罪被害人保護法) is not applicable once a victim and an offender reach a settlement, even if the latter is unable to fulfill the settlement. It is as if the state wants to keep its distance, as if public order is not its business and that victims deserve to be offended. Not only are they unable to receive compensation that the state owes them, they also sometimes face the abuse from the Association for Victims Support (犯罪被害人保護協會) during investigation.

  The Act for Rebuilding Old Quarters for Military Dependents (國軍老舊眷村改建條例) caused much controversy before the presidential election. In 1999, Constitutional Interpretation No. 485 stated that, as the act fails to restrict “the parties to transfer” and “the price of transaction,” it could be harmful to the utilization and distribution of limited resources.

  As Constitutional Interpretation No. 727 specifically stated last year: “Resident military householders who disagree with the reconstruction of old military dependents’ villages not only lose their aforementioned rights to purchase residence units and to receive a purchase subsidy, they also forfeit the subsidies for moving expenses and the reimbursement of demolition costs. The competing legal interests have not yet reached a balance; therefore, the authorities should conduct a thorough review and make improvements as soon as possible.”

  Such legal flaws allow opportunists and top military officers to engage in real-estate speculation.

  The various tax laws and the way they are implemented are also unfair. Due to inadequate supervision from the government, some people establish dummy companies in a Ponzi scheme — in which a company pays returns to investors from capital paid by investors themselves, rather than from profits earned by it. Many people fall prey to this kind of fraud, in some cases losing their life savings, and yet the National Taxation Bureau fails to understand what has transpired, recording the victims’ losses as gains and punishing them with high income taxes.

  As Otto Mayer, the father of German administrative law, said in 1924: “Constitutional law changes; administrative law remains.”

  People’s lives are chained to administrative law from the cradle to the grave. Taiwan’s administrative law has emphasized administrative effectiveness, discretion and sanction over unfair and unreasonable restrictions on, or infringement of, people’s rights. These are the “livelihood bills” that the new legislature should legalize or amend, as the public expects.

  For regulations that go beyond proportionality, judges are unable to make interpretations in line with the Constitution in individual cases to protect people’s rights. Once the court of final appeals hands down its ruling, it serves as a legal precedent constraining state power.

  However, the tradition of acting like “law enforcers” usually exists in the judicial system, as judges make rulings strictly in accordance with the law. In the face of the occasional unreasonable regulation, they are unwilling to make an extra effort to push against “legal dogmatics,” while failing to give full play to the judicial branch to constrain the administrative branch from issuing unlawful administrative orders. Instead, they allow government agencies to infringe upon people’s rights with administrative orders beyond the law and fail to clarify the application of the law reconciled with the objectives of the constitutional principle from the perspective of basic rights, so as to restrain the legislative branch’s unconstitutional infringement on people’s rights.

  In terms of judicial reform, Taiwan has mainly focused on systematic reform over the past 10 years, while ignoring how it can reform the system to make it more humane. Since the law is enforced by humans, judges who have the final say are of significance.

  However, the court of final appeals limits their hand with its rulings and the Judicial Yuan, in charge of judicial administration, holds the ultimate power for judges’ employment, dismissal and promotion. The former should promote constitutional awareness and improve the quality of rulings, and the latter should no longer haggle over every ounce for the statistics and forms when evaluating a judge’s performance. Otherwise, people can hardly go anywhere no matter how hard they push for reform.

  What are the so-called “livelihood bills”? The livelihood bill that is most beneficial to the public is judicial reform, especially personnel reform.

  Chien Chien-jung is a Taoyuan District Court judge.

  Translated by Eddy Chang
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