The controversy surrounding China-born Taiwan People’s Party (TPP) Legislator Li Zhenxiu’s (李貞秀) eligibility to hold office has recently become a focal point of public and media attention. At its core, beyond issues of national identity, the fundamental solution lies in governing according to the law to rebuild the foundations of a democratic rule-of-law system.
First, Article 21 of the Act Governing Relations Between the People of the Taiwan Area and the Mainland Area (臺灣地區與大陸地區人民關係條例), hereby referred to as the cross-strait act, stipulates: “Except otherwise provided for in any other law, any of the people of the Mainland Area permitted to enter into the Taiwan Area may not register itself as candidate for any public office, serve in the government, educational institutions or state enterprises, or organize any political party unless it has had a household registration in the Taiwan Area for at least ten years...”
Meanwhile, Article 20 of the Nationality Act (國籍法) says: “A national of the ROC (Republic of China) who acquires the nationality of another country shall have no right to hold government offices of the ROC. Suppose he/she already holds a government office, the relevant authority shall discharge him/her from the government office.”
These provisions clearly establish that people with dual nationality may not hold public office in the ROC. Therefore, even though the cross-strait act protects the political participation rights of people from China, the requirement of maintaining household registration in Taiwan for a minimum of 10 years is only one of the conditions — the prohibition of dual nationality is a universally applicable principle. Under Chapter 2 of the Central Regulation Standard Act (中央法規標準法), the cross-strait and the nationality acts share the same legal status — one does not take precedence over the other. Rather, considering Article 21 of the cross-strait act, the relevant provisions of the Nationality Act should be regarded as special provisions and should be applied first.
Second, from the perspective of administrative law, disputes over the eligibility and qualifications of at-large legislators should be addressed by applying Article 117 of the Administrative Procedure Act (行政程序法), which governs the revocation of unlawful administrative dispositions. This is because the method by which at-large legislators are selected is not through direct election by individual constituencies, but rather through a party-list proportional representation system. Accordingly, the legal relationship more closely resembles an administrative confirmation and determination of a person’s qualifications. Therefore, if the competent authority issues an unlawful administrative decision during the candidate registration review or the issuance of election certificates, the matter should be handled in accordance with general administrative law principles. Thus, the Central Election Commission (CEC) should, by virtue of the office, revoke the unlawful administrative disposition to enable the timely self-correction of administrative legality.
Some argue that Article 121, Paragraph 2 of the Public Officials Election and Recall Act (公職人員選舉罷免法) could be invoked, allowing the CEC to file a lawsuit challenging the validity of the election. However, the application of this provision presupposes that the candidate in question meets conditions outlined in Article 29, Paragraph 1 or 2 of the same act. However, Article 29 is contingent upon contraventions of Article 24, paragraphs 1 to 3, Article 26, Article 27 and Article 92, Paragraph 1. However, a close examination of all these conditions surrounding candidate eligibility reveals no circumstances corresponding to a situation such as Li’s alleged dual nationality. As such, there is no legal basis for applying these provisions, and filing a lawsuit to invalidate the election would not conform to the explicit requirements outlined in the act.
The CEC should apply Article 117 of the Administrative Procedure Act and revoke Li’s unlawful administrative disposition. This would prevent an unreasonable scenario in which candidates exploit the time-consuming nature of election invalidation litigation as a systemic loophole — submitting false information to mislead the CEC, only to then require the CEC to initiate a lawsuit to invalidate the election.
Hsu Hui-feng is a professor at CTBC Business School’s Department of Business and Economic Law.
Translated by Kyra Gustavsen
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