On Wednesday, the legislature passed the Act Governing Civil Servants’ Retirement, Discharge and Pensions (公務人員退休資遣撫卹法).
The act will significantly affect the income replacement ratio and 18 percent preferential savings rate for civil servants. Although some of the pan-blue camp’s legislators are planning to apply for a constitutional interpretation on the matter, seeking legal remedies might not be easy.
According to Article 5, Paragraph 1, Subparagraph 3 of the Constitutional Interpretation Procedure Act (司法院大法官審理案件法), it takes one-third of legislators to reach the application threshold for a constitutional interpretation. As the Chinese Nationalist Party (KMT) only has 34 seats in the legislature, it needs four more to reach the threshold; it cannot meet the requirement without the assistance of other parties.
If the KMT’s application does not work, it would have to rely on the public to apply for it in accordance with Article 5, Paragraph 1, Subparagraph 2 of the Constitutional Interpretation Procedure Act, which states that an individual can also apply for a constitutional interpretation when their constitutional rights are infringed.
However, that person can only reach the threshold when their constitutional rights are actually infringed and when all other legal recourse has been exhausted.
As the retirement act is not to take effect until July 1 next year, the benefits for retired civil servants are unlikely to be affected until then, so they would not qualify to apply for administrative remedies at the moment. Should their potential lawsuits fail in years to come, they could apply for a constitutional interpretation.
Even if they can overcome all procedural obstacles to a constitutional interpretation and submit a case to the Council of Grand Justices, whether the grand justices would declare the controversial retroactive legislation unconstitutional is unknown. So the issue actually involves the old and new laws, as well as the dilemma of retroactivity or non-retroactivity. How to apply the laws might be questionable by then.
Take the preferential savings rate for example. Agencies adjusted it through an administrative order in 2006. In response to a retired public-school teacher’s petition later, the grand justices issued Constitutional Interpretation No. 717 in 2014.
It states: “Laws and regulations that grant financial interests to the people and that carry a predetermined period of applicability, within the said period of time should be accorded a relatively high level of trust. Unless there is an urgent matter of public interest, they should not be curtailed. Should new regulations be issued after the expiry of the said period of time then the issue of reliability does not arise.”
Nevertheless, it also states: “Besides the requirement to avoid a complete cessation of all privileges granted, in examining the level of reductions to be made, one should also consider making such reductions in installments and taking into account differences in the capacity of the objects falling within the scope of the regulations, so as to prevent excessive harm to their reliability of interest.”
Therefore, on the constitutional battlefield in the future, apart from whether such retroactivity in the pension act is constitutional, a key will lie in whether it can effectively protect civil servants’ reliability of interest and retirement life.
Can this argument really be solved by the grand justices, who often deliver abstract and ambiguous interpretations?
A large question mark hangs over that.
Wu Ching-chin is chair of Aletheia University’s Department of Law.
Translated by Eddy Chang
Criticisms of corruption, a poorly managed bureaucracy and uninformed, unprincipled or unaccomplished policy in China are often met with harsh punishments. Many protesters in the “blank paper movement,” for example, have been disappeared by the authorities. Meanwhile, the WHO has asked China to provide data on its COVID-19 situation, with the Chinese government choosing to disseminate propaganda instead. The first amendment of the US Constitution, written in 1791, prohibits the US government from abridging the freedom of speech, press, assembly, petition, or religion. More than 200 years later, China, the world’s second-largest economy, still lacks the freedoms of speech and the press,
Taiwan Semiconductor Manufacturing Co (TSMC), the pride of the nation, has recently become a villain to residents of Tainan’s Annan District (安南). In 2017, TSMC announced plans to build the world’s first 3-nanometer fab in Anding District (安定). While the project was once welcomed by residents of Tainan, it has since become a source of controversy. The new fab requires a huge amount of electricity to operate. To meet TSMC’s surging electricity demand, plans are under way to construct a 1.2 gigawatt gas power station near a residential area in Annan District. More than 10,000 Annan residents have signed a petition
As the People’s Republic of China (PRC) constantly strives to rewrite the Taiwan narrative, it is important to regularly update and correct the stereotypes that the PRC tries to foist on Taiwan and the world. A primary stereotype is that Taiwan has always been a part of China and its corollary that Taiwan has been a part of China since time immemorial. Both are false. Taiwan has always been a part of the vast Austronesian empire, which stretched from Madagascar in the west to Easter Island in the east and from Taiwan in the north to New Zealand in the south. That
I first visited Taiwan in 1985, when I was deputed by His Holiness the Dalai Lama to start a dialogue with the Chinese Nationalist Party (KMT). I spent three days talking to officials, the end result being the signing of an agreement where the Republic of China (ROC) recognized the right to self-determination of Tibetans. According to official KMT records in Nanking, Tibet never paid taxes to the ROC government. In 1997, the Dalai Lama made his first ever visit to Taiwan on the invitation of then-president Lee Teng-hui (李登輝). Lee took the bold step of opening Taiwan’s doors to
RSS