The Stolen Five Months

On January 29, the President promulgated the newly amended Communication Security and Surveillance Act. Pursuant to the Standards Act for Central Laws and Regulations, since no specific implementation date was provided, the Act took effect on the third day following promulgation—January 31, which was Lunar New Year's Eve.

Media reports indicate that the Minister of Justice went so far as to claim that the new Communication Security and Surveillance Act would only take effect after five months, and stated an intention to propose further amendments during the current legislative session prior to that effective date. The Ministry of Justice's stance is evidently based on Article 34, Paragraph 2 of the Act, which was added during the major overhaul in 2006, stipulating that "The amended provisions of this Act shall take effect five months after promulgation." While the Ministry of Justice remarked prior to the New Year that these five months were an "unexpected windfall," I believe these are five months during which the nation's rule of law was stolen.

Taking Effect Three Days After Promulgation

"When laws and regulations take effect" is a topic covered in introductory legal studies during the first year of university, and all legal professionals are familiar with the provisions of the Standards Act for Central Laws and Regulations. Article 12 of the Standards Act for Central Laws and Regulations stipulates: "Laws and regulations shall provide an implementation date, or authorize the determination of an implementation date by order"; Article 13 stipulates: "Where laws and regulations explicitly provide that they shall take effect from the date of promulgation or release, they shall take effect on the third day following the date of promulgation or release." Based on textual and systematic interpretation, even if an amended statute does not explicitly state an implementation date, the provisions of Article 13 may still be applied by analogy so that it takes effect on the third day following promulgation. Such examples are frequently seen in practice; for instance, Article 22 of the amended Notary Act and Article 53 of the Consumer Debt Clearance Act, despite not explicitly stating an implementation date, have consistently been interpreted by the Judicial Yuan as taking effect three days after promulgation by the President. This is not a particularly difficult systematic legal interpretation.

In fact, how laws and regulations take effect is also a constitutional issue; constitutional norms and general principles of legal theory cannot be ignored. The amended provisions of all laws, even if an implementation date is not specially designated, should interpretatively be "directly applied" under the latter part of Article 13 of the Standards Act for Central Laws and Regulations to take effect on the third day following promulgation, without the need for application by analogy. Otherwise, the Standards Act for Central Laws and Regulations is a "law" promulgated only on "August 31, 1970." Prior to this, countless bills passed by the Legislative Yuan and promulgated by the President would lack implementation and effective dates.

Pursuant to Article 170 of the Constitution, a "law" must be passed by the Legislative Yuan and promulgated by the President. The reason the Constitution requires laws to be "promulgated" by the "President"—apart from substantive review powers embodying the separation of powers in certain countries, such as the United States—lies primarily in the constitutional significance of the "principle of legal certainty." In other words, laws must undergo the public notification procedure of "promulgation" to ensure that the people subject to regulation have predictability and the ability to respond. If the Constitution or Basic Law does not provide otherwise, interpretatively, laws are implemented and take effect from the date of promulgation. Of course, the Standards Act for Central Laws and Regulations specifically provides here that the "effective date" is the third day following the date of promulgation.

Ignorant of Legal Principles, Distorting and Delaying

To put it very simply, prior to the enactment of the Standards Act for Central Laws and Regulations in 1970, there was no legislative procedure or technical practice in our country of explicitly stating an implementation date at the end of a legal code. This is evident by looking at the Civil Code, Criminal Code, Code of Civil Procedure, and Code of Criminal Procedure most frequently used by practitioners, which were promulgated, implemented, and made effective over a decade prior to 1970. Even if the legislators did not explicitly state "to take effect from the date of promulgation" at the end of the legal code, reverting to the principles of legal effectiveness and legal certainty stipulated by the Constitution, it naturally takes effect from the date of promulgation. This does not require the explicit provision in the first half of Article 12 of the Standards Act for Central Laws and Regulations. Therefore, the focus of Article 12 is on the latter half: legislators may authorize the executive branch to prescribe the implementation date by order. The meaning of Article 12 should be interpreted as "laws shall principles-wise follow general legal theory or constitutional principles regarding the promulgation and implementation of laws; unless an authorized order sets the implementation date, they shall take effect on the date of promulgation."

The amended provisions of this Communication Security and Surveillance Act naturally took effect when promulgated by the President. Rather than saying this was based on the final article of the Act explicitly stating "to take effect from the date of promulgation," it is better to say that this ought to be the case based on general legal theory and constitutional principles, while the effective date is the third day following promulgation pursuant to Article 13 of the Standards Act for Central Laws and Regulations. As for the provision in Article 34, Paragraph 2 that "The amended provisions of this Act shall take effect five months after promulgation," it was meant to accommodate the preparation period for the 2006 amendments, and it is obviously impossible for it to govern provisions amended subsequent to that time. Otherwise, would even a single corrected typo in the future have to wait five months to be implemented and take effect?! The absurdity of this is imaginable.

How is it that the Ministry of Justice, willing to remain ignorant of legal principles and even violate the Constitution, deliberately misinterprets the effective date of the law, abruptly stealing five months? Contrasted with the statements of the Minister of Justice, the intention to stall for time and amend the Communication Security and Surveillance Act back to its original form is abundantly clear.