Nominee Wang Pi-fang's Response—The Alliance for Citizens' Watch on Grand Justices' Nominees 15 Questions to Nominees

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Updated on December 24, 2024: National Taiwan University Department of Law student Ch'en Kuan-ying wrote on December 21 stating that Nominee Wang Pi-fang's response text to Question 11 is similar to her article published on February 16, 2024, titled 〈My Gender, Who Decides?! A Brief Discussion on Domestic Judgments Related to Gender Marker Changes Without Surgery and a Comparison of Transnational Systems〉, but without citation. This Alliance notes this opinion and compares the texts as follows:

Nominee Wang Pi-fang's Response Text

Text from Ch'en Kuan-ying's Article on February 16, 2024

Internationally, conditions for gender marker changes can be broadly divided into 3 categories: the strong medical model, the weak medical model, and the self-determination model. Among these, the self-determination model respects personal gender identity much more than the first two while better depathologizing diverse gender identities. The Diagnostic and Statistical Manual of Mental Disorders (DSM) of the United States and the International Classification of Diseases (ICD) of the WHO have both depathologized gender identity. Since it is not a disease, medical intervention or diagnosis is naturally unnecessary; this is the rationale underlying the self-determination model.

Internationally, conditions for gender marker changes can be broadly divided into three categories: the strong medical model, the weak medical model, and the self-determination model (Table 1). Under the strong medical model, invasive medical measures such as gender-affirming surgery or hormone therapy are prerequisites for changing gender. Countries adopting this include Taiwan, Japan, China, the Czech Republic, Romania, and Turkey. The weak medical model does not require the aforementioned mandatory medical measures, requiring only assessment and medical certification by professionals (such as psychiatrists or psychologists). This model is clearly more humane than the former, yet still requires medical intervention; Germany, Austria, the Netherlands, England, and Israel all adopt this model. In addition, the self-determination model is a method adopted by an increasing number of countries. Under this model, transgender individuals do not need to undergo medical procedures and can apply for a gender marker change simply through court or administrative agency procedures; examples include Canada, France, Denmark, Norway, Switzerland, and Argentina. Compared to the aforementioned two, the self-determination model respects personal gender identity much more while better depathologizing diverse gender identities. The Diagnostic and Statistical Manual of Mental Disorders (DSM) of the United States and the International Classification of Diseases (ICD) of the WHO have both depathologized gender identity. Since it is not a disease, medical intervention or diagnosis is naturally unnecessary; this is precisely the rationale underlying the self-determination model.

• Focus on Human Rights and Constitutional Issues

1. In your upcoming eight-year term, what do you consider to be the most emblematic (or your most concerned) constitutional issue or basic human rights protection issue?

Answer:

Pursuant to the Constitutional Court Procedure Act, the rendering of Constitutional Court judgments is initiated based on petitions by individuals or government agencies; Grand Justices cannot independently determine the issues for judgment. As for the cases (already accepted) listed in the public petitions announced on the Constitutional Court's website, there are quite a few emblematic constitutional issues and basic human rights protection issues. However, in accordance with the Code of Judicial Ethics, judges (including Grand Justices) may not publicly express views on pending or impending cases that may affect the fairness of judgments or proceedings. Therefore, I will not discuss specific issues involved in the aforementioned accepted cases.

2. Regarding previously rendered Grand Justices' Interpretations or Constitutional Court judgments, please cite an example to explain how you would adopt a different conclusion or a different line of reasoning.

Answer:

I cannot agree with either the conclusion or the reasoning of Judicial Yuan Interpretation No. 795: "The action for retrial filed by the petitioner in this case within 30 days from the date of the announcement of J.Y. Interpretation No. 742 shall be deemed to have been filed with the competent appeal authority within the statutory period for filing an appeal. Judicial Yuan Interpretation No. 742 shall be supplemented."

According to paragraph 1 of the Reasoning of that Interpretation, the petitioner previously challenged the Taipei City Government's Announcement No. 81086893 dated December 14, 1992, regarding the "Taipei City Urban Planning Public Facility Reserved Land (Comprehensive Review) Case" (hereinafter the "disputed urban planning"). The petitioner's land, originally designated for government facilities, was changed by the Academia Sinica waiving its reservation to a Category 3 residential district, subject to the burden of designating 30% of the land for public facilities while also concentrating statutory open space accordingly, causing them losses. The petitioner applied to the Judicial Yuan for a supplementary interpretation of J.Y. Interpretation No. 156 regarding the controversy over whether they could initiate administrative litigation for relief. The Judicial Yuan rendered J.Y. Interpretation No. 742 upon this application, holding inter alia: "...where the urban planning formulation agency conducts a regular comprehensive review pursuant to regulations... and specific items directly restrict the rights and interests of, or increase the burdens on, specific persons or an ascertainable majority within a certain area, based on the constitutional principle that where there is a right there is a remedy, they shall be permitted to file an appeal or administrative litigation regarding that part for relief." The petitioner filed an action for retrial based on the disputed interpretation. Although the Supreme Administrative Court's 2017 Administrative Judgment No. 487 (hereinafter the "final and binding judgment"), applying the disputed interpretation, deemed there to be grounds for retrial, it reasoned that because the disputed urban planning was announced as early as December 14, 1992, the period for administrative relief against it should be calculated starting from the 15th of the same month, whereas the petitioner only filed an appeal on October 17, 2013—well beyond the statutory relief period. Consequently, the original final judgment dismissing the petitioner's appeal had no fault in its conclusion, and therefore the petitioner's action for retrial was dismissed as still lacking merit.

From the facts and the facts recorded in the successive administrative court judgments of the underlying case, it can be known that the dismissal of the petitioner's action and action for retrial by the administrative courts did not stem from contradicting the principle pointed out in J.Y. Interpretation No. 742—that "where the urban planning formulation agency conducts a regular comprehensive review pursuant to regulations... and specific items directly restrict the rights and interests of, or increase the burdens on, specific persons or an ascertainable majority within a certain area... they shall be permitted to file an appeal or administrative litigation regarding that part for relief." Rather, it was based on the ground that the disputed urban planning was announced as early as December 14, 1992, and the period for seeking administrative relief should be calculated from December 15 of the same month, while the petitioner only filed an appeal on October 17, 2013, which clearly exceeded the statutory relief period. Thus, whether the petitioner could lawfully file under J.Y. Interpretation No. 742 was already questionable. Furthermore, the petitioner filed the action for retrial in the capacity of a petitioner of J.Y. Interpretation No. 742, and the retrial court dismissed the action pursuant to Article 280 of the Administrative Litigation Act on the ground that the retrial was without merit. The petitioner, considering that they "still failed to obtain relief," submitted this petition for supplementary interpretation regarding the disputed interpretation applied in the retrial judgment, concerning "the determination of the starting point of the statutory period for specific contents of individual items that possess the nature of individual amendments and constitute administrative dispositions within the urban planning regular comprehensive review announcement in the underlying case." In reality, the petitioner's request for instruction on the "starting point of the statutory relief period" did not relate to the subject matter of J.Y. Interpretation No. 742 and did not constitute an object for which a Judicial Yuan interpretation of the Constitution may be petitioned. J.Y. Interpretation No. 742 is hardly susceptible to loopholes or ambiguity within this scope; the petition for a supplementary interpretation was indeed unlawful and should have been dismissed without acceptance. The said interpretation, under the guise of a supplementary interpretation, directly instructed specific and concrete individual case opinions and applications of law regarding the relief procedures involved in the underlying case, creating unprecedented constitutional review powers and methods, and adopting means incompatible with legal norms to achieve the purpose of individual case relief. This is difficult to agree with.

3. Are there any constitutional or human rights issues on which you hold a firmly established constitutional stance in your heart, yet which diverge to a certain extent from current stable mainstream views or legal orders, or regarding which diverse and divergent opinions still exist in society?

Answer:

There are indeed quite a few constitutional systems and human rights issues in society today that involve diverse, divergent, and even fiercely opposing views. These await rational dialogue among all sectors to seek consensus. Based on the passive nature of the judiciary and the principle of no action without a petition, as well as the precept that Grand Justices must engage in adjudication with transcendence and independence, and maintain impartiality, objectivity, and neutrality when performing their duties, one must not prejudge cases. Therefore, upon entering the Constitutional Court in the future, when adjudicating individual cases, the nominee shall thoroughly review the parties' arguments, consult the expert and scholarly appraisal opinions of relevant competent authorities as well as amicus curiae briefs, and deliberate with other members of the Constitutional Court before finally forming a mature constitutional conviction.

• International Human Rights Covenants and Constitutional Review

4. Paragraph 16 of the Concluding Observations of the International Review Committee for International Human Rights Covenants in 2022 states: "...Where existing or subsequently enacted laws and regulations conflict with the two Covenants, the status of the two Covenants must be further clarified. The Review Committee emphasizes that the two Covenants, as the two most important human rights covenants of the United Nations, should be given priority consideration." Do you believe that domesticated international human rights covenants should be given priority application when they conflict with domestic laws? Or when conflicts arise, should the standard of review for constitutional adjudication be raised? What is the relationship between the rights list of international human rights covenants and the types and contents of fundamental rights in our country?

Answer:

Article 2 of the Enforcement Act of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights (hereinafter the Two Covenants) explicitly stipulates: "The provisions for the protection of human rights as revealed by the two Covenants shall have the effect of domestic law." Therefore, in terms of the hierarchy of legal norms, the Enforcement Act of the Two Covenants does not possess constitutional status; its legal hierarchy is not superior to other domestic laws passed through three readings by the Legislative Yuan and promulgated by the President. The effect between them should be equal. Furthermore, Article 8 of the Enforcement Act of the Two Covenants explicitly stipulates: "The government agencies at all levels shall, in accordance with the provisions of the two Covenants, review the laws, regulations and administrative measures within their respective jurisdictions. Where there are any provisions or measures inconsistent with the two Covenants, they shall complete the enactment (formulation), amendment or repeal of laws and regulations and the improvement of administrative measures within two years after the enforcement of this Act." Since the Enforcement Act of the Two Covenants has been in force for over 15 years since December 10, 2009, theoretically, issues regarding how to apply domesticated international human rights covenants when they conflict with domestic laws and whether to raise the standard of constitutional review should no longer arise. However, in reality, government agencies at all levels appear not to have fully completed the mandate of the aforementioned provision; hence, conflicts between the laws and regulations or administrative measures under the jurisdiction of government agencies at all levels and the human rights protection provisions of the Two Covenants still exist. In this regard, concerning the application of law, if the Two Covenants generate concurrence with other domestic laws, the principles of "later laws supersede earlier laws" and "special laws supersede general laws" apply, and the legislative intent of the Two Covenants and the interpretations of the United Nations Human Rights Committee may be referenced. During constitutional review, the standard of review is not necessarily required to be elevated; however, international covenants may be used as balancing factors by the Constitutional Court in individual cases to render interpretations consistent with the intent of international human rights covenants. Additionally, the rights list of international human rights covenants can serve as argumentative bases for identifying unlisted fundamental rights under Article 22 of the Constitution.

5. Paragraph 7 of Article 10 of the Additional Articles of the Constitution of the Republic of China stipulates that employment assistance, livelihood maintenance, and relief for persons with disabilities shall be guaranteed, and their self-reliance and development shall be aided. Paragraph 3 of General Comment No. 6 of the domesticated Convention on the Rights of Persons with Disabilities (CRPD) further points out: "...the denial of reasonable accommodation constitutes discrimination." Do you think the content of this General Comment possesses legal binding force? In constitutional review, do you consider laws or judgments that violate the "reasonable accommodation principle" to constitute a violation of the right to equality and warrant a strict standard of review?

Answer:

Article 2 of the Enforcement Act of the Convention on the Rights of Persons with Disabilities (hereinafter the CRPD) stipulates: "The provisions for the protection of the human rights of persons with disabilities as revealed by the Convention shall have the effect of domestic law." Article 3 stipulates: "In the application of the provisions of the Convention and administrative measures, reference shall be made to the intent of the Convention and the interpretation of the Convention by the United Nations Committee on the Rights of Persons with Disabilities." Thus, it can be known that the content of CRPD General Comments should serve as a reference for interpreting how CRPD provisions ought to be applied, and cannot be equated with the individual provisions of the CRPD itself to deem General Comments as possessing legally binding force. The core concept of the CRPD is equality and non-discrimination; therefore, refusing to provide reasonable accommodation can indeed cause an infringement upon the right to equality and constitute discrimination. Observing our country's constitutional interpretation practice regarding the judicial review of the right to equality, factors of classification criteria and subject matter types (or rights types) are referenced to determine the standard of review, thereby operating the correlation between classification purposes and means, focusing on whether differential treatment is reasonable and necessary—which differs slightly from the CRPD's interpretive pathway. Moreover, in constitutional review practice, to examine whether a measure taken by the state constitutes differential treatment, in terms of classification, it is determined whether to apply a strict standard of review based on whether it falls under a "suspect classification" (whether the classification is sensitive, representing an isolated and insulated minority), or whether it falls under a "quasi-suspect classification," which determines whether to apply an intermediate standard of review or whether a rational basis review suffices. Therefore, in constitutional review, whether a law or judgment violating the principle of reasonable accommodation constitutes an infringement of the right to equality still depends on the factors involved in the individual case.

Referenda and Constitutional Review

6. Article 12 of the Additional Articles of the Constitution stipulates that amendments to our Constitution shall follow the procedures of passage by the Legislative Yuan and citizen plebiscite. The "18-Year-Old Citizen Rights" constitutional amendment plebiscite held in 2022 failed to pass because it did not reach the passage threshold. From the perspective of the current constitutional amendment procedure and the practice of the aforementioned constitutional amendment plebiscite, do you think the current constitutional amendment procedure and threshold are appropriate? How do you evaluate their impact on Taiwan's democratic operations? Does Article 12 of the Additional Articles of the Constitution raise unconstitutionality concerns?

Answer:

According to the announcement by the Central Election Commission, the statistics for that referendum were: eligible voters: 19,239,392; valid votes: 10,663,529; affirmative votes: 5,647,102; dissenting votes: 5,016,427. Valid affirmative votes did not exceed half of the total eligible voters, and the voting result was: rejected. According to scholarly observation, this was because the threshold for passing a citizen plebiscite stipulated in Article 12 of the Additional Articles of the Constitution of the Republic of China is more than half of the total eligible voters. While such a provision possesses the constitutional significance of realizing direct democracy and strengthening the connection between the people as sovereigns and constitutional changes, if the Constitution is understood from the perspective of an intergenerational contract—that is, the realization of the will of the constituent power whose influence extends to generations of people after the Constitution's enactment—can future generations of people, equally as sovereigns, likewise exert influence over the content of the Constitution? In other words, observed from the perspective of intergenerational justice regarding the aforementioned constitutional amendment result and the voting result, one can find that the severity of the current threshold imposes a fundamental constraint on the constitutional participation of the next generation of people, making it necessary to strengthen the citizen plebiscite procedure. Some scholars also argue that the ultra-high constitutional amendment threshold of the aforementioned article binds and strangles the citizens' power of constitutional amendment, raising doubts as to whether it violates the principle of popular sovereignty that sovereignty resides in the people. Furthermore, J.Y. Interpretation No. 499 pointed out that provisions in the Constitution possessing essential importance and serving as the foundation for the survival of the normative order, such as the principles of a democratic republic and popular sovereignty, would cause the overall constitutional normative order to collapse if such constitutional amendment provisions were allowed to alter them.

7. Following the promulgation of J.Y. Interpretation No. 748, several groups opposing same-sex marriage submitted a referendum proposal to the Central Election Commission (CEC) in January 2018 (concerning whether same-sex marriage should be defined and protected by the Civil Code), and the referendum was held on November 24 of the same year. Regarding the administrative disposition by the CEC announcing the approval of the referendum proposal, certain individuals belonging to the same-sex community, in the capacity of interested parties as plaintiffs, filed an action for revocation with the Taipei High Administrative Court prior to the voting and applied for a suspension of the execution of the referendum procedure. The case became final on May 29, 2020, after the Supreme Administrative Court dismissed the plaintiffs' appeal in its 2020 Administrative Judgment No. 300, which held that the plaintiffs were not interested parties, lacked subjective public rights, lacked standing to sue, and that the protection norm theory was not applicable. It additionally pointed out that even if a referendum proposal violates the Indigenous Peoples Basic Act, it merely means the CEC has the power to refuse its proposal establishment, and under the law, prosecutors possess standing to sue while indigenous peoples themselves do not. What is your view regarding the aforementioned opinion that interested parties, even if their rights are directly infringed upon, do not possess standing to sue? Regarding a referendum proposal with a high possibility of unconstitutionality, do you think the provisional measure system prescribed in Article 43 of the Constitutional Court Procedure Act can be applied, and how?

Answer:

The original text of the Supreme Administrative Court's 2020 Administrative Judgment No. 300 states: "Upon examination, the original judgment has already elucidated: According to Articles 2, 17, and 136 of the Constitution and the first half of Article 1 of the Referendum Act, the enactment of the Referendum Act is clearly based on the principle of popular sovereignty under the Constitution. Citizens exercising public voting through initiatives or revoking/plebiscites is essentially the 'power' of exercising political rights under popular sovereignty, which is distinct from the basic 'rights' of subjective public rights of individuals. Furthermore, the Referendum Act explicitly stipulates who possesses standing to sue; Chapter VI of the Referendum Act on Referendum Litigation only confers upon the lead proposer of a proposal the subjective public right to initiate administrative litigation, and does not adopt a public interest litigation system allowing any general person to seek relief. Moreover, it explicitly stipulates that in cases of invalid referendums or the invalidity of the passage or rejection of a referendum proposal, lawsuits shall be initiated by prosecutors, whereas general voters report and furnish evidence to prosecutors (Articles 48, 50, and 51 of the Referendum Act). The referendum conduct regulated by the Referendum Act aims to supplement the deficiencies in the functioning of the democratic representative system, focusing on the presentation of majority public opinion rather than the protection of individual legal interests of citizens. Consequently, it cannot combine with the 'protection norm theory' to deduce that 'voters enjoy the subjective public right under the Referendum Act to dispute administrative actions holding referendums.' Therefore, finding that the appellants lacked the capacity to file this lawsuit and lacked standing as parties, the dismissal of the appellants' action in the original trial by the original judgment is not contrary to law. The appellants persist in their previous arguments, claiming that they, along with indigenous peoples, belong to vulnerable groups and that other rights to initiate litigation in accordance with administrative law principles and rules cannot be excluded. However, Article 1, Paragraph 2 of the Referendum Act was enacted to protect the rights of indigenous peoples, such that if a referendum proposal involves violations of the provisions of the Indigenous Peoples Basic Act, its proposal establishment shall not be permitted. This does not confer upon indigenous peoples the right to initiate litigation against it, nor can it be deduced therefrom that the appellants enjoy the subjective public right to seek relief against the disputed announcement disposition. Accordingly, the appellants' persistence in pointing out that the original judgment violates the law and praying for its revocation is without merit and should be dismissed." The prompt's reference to the aforementioned opinion that interested parties "even if their rights are directly infringed upon, do not possess standing to sue" is not the meaning of the judgment and contains a misunderstanding.

Article 43, Paragraph 1 of the Constitutional Court Procedure Act stipulates: "While a petition case is pending, the Constitutional Court may, upon petition or ex officio, render a ruling on provisional measures regarding matters such as disputes related to the case, the application of legal norms, or the execution of judgments in the underlying case, in order to avoid grave and irreparable harm to rights or public interest guaranteed by the Constitution, where there is urgent necessity and no other means to prevent it." Thus, provisional measures prescribed by the Constitutional Court Procedure Act are premised on the petition case already being pending before the Constitutional Court, and must meet the statutory requirements of "avoiding grave and irreparable harm to rights or public interest guaranteed by the Constitution, where there is urgent necessity and no other means to prevent it." According to Article 10 of the Referendum Act, regarding the submission of a national referendum proposal, the competent authority shall, within 60 days after receiving the referendum proposal or a supplementary proposal, complete its review. If upon review: 1. the proposal is not a matter applicable to national referendums prescribed in Article 2 (revocation of laws, initiative of legislative principles, initiative or revocation of major policies); 2. the proposal violates the regulations prescribed in Article 9, Paragraph 4 (wording and terminology of the text and reasoning statement, word count calculation, grammar, and other related matters); 3. the proposal does not comply with Article 1, Paragraph 2 (referendums involving indigenous peoples' rights shall not violate the provisions of the Indigenous Peoples Basic Act) or Article 9, Paragraph 8 (submission of a referendum proposal shall be limited to one matter per proposal); 4. the proposal falls under circumstances prescribed in Article 32 (within 2 years from the date the competent authority announces the result of a referendum, no re-submission may be made regarding the same matter); or 5. the true intent of the proposal cannot be understood—in any of these circumstances, the competent authority shall state its reasons and notify the lead proposer of the proposal to make supplements within a specified time limit. If the supplement is not made within the time limit or still fails to comply with regulations after supplement, the proposal shall be dismissed. Viewed in this light, and from the perspective of the principle of popular sovereignty and the core values of realizing direct democracy, the CEC should not possess the power of substantive unconstitutionality review over referendum proposals and dismiss them on such grounds. Furthermore, while the Executive Yuan shall indeed draft relevant legislative proposals within 3 months for legislative principles passed through national referendums and submit them to the Legislative Yuan for deliberation (Article 30, Paragraph 1, Subparagraph 2 of the Referendum Act), laws deliberated and completed through this procedure still possess the status of law, and shall not contradict the Constitution, nor shall they contradict Judicial Yuan interpretations or Constitutional Court judgments possessing efficacy equivalent to the Constitution. In the event of any violation, the Constitutional Court may still declare the law unconstitutional upon petition. Therefore, whether the provisional measure system can be applied during the review stage of individual national referendum proposals mentioned in the prompt depends entirely on whether they meet the requirements of Article 43 of the Constitutional Court Procedure Act.

• State Duty of Protection and Constitutional Review

8. Currently, de facto spousal relationships of heterosexual or homosexual cohabiting partners lack clear legal protection. Do you think the current status of lacking explicit legal protection in our legal system constitutes unconstitutionality by "legislative omission"? In addition, what "legislative omission" statuses do you think might potentially be evaluated as unconstitutional under the current status?

Answer:

The Grand Justices' methods of declaring legal norms unconstitutional adopt diversified declaration models. Among them, where there is an obvious legislative omission, a legislative lacuna, or insufficient regulation that evidently constitutes a major defect in legislation, it is deemed unconstitutional, and the Grand Justices instruct in the text of the interpretation to mutatis mutandis apply or apply other provisions to fill the loophole. However, whether this clearly constitutes a legislative omission depends on whether the legislative omission has violated the Constitution's protection of the people's fundamental rights. If it merely lacks explicit protection, it does not naturally constitute unconstitutionality by legislative omission. Although the reasoning of J.Y. Interpretation No. 647 pointed out: "Heterosexual partners who, subjectively, share the intention of common living like marriage between unmarried persons, and objectively also have the fact of common living, though not possessing a legal marital relationship, are extremely similar to spouses in a legal marital relationship. If they also share the fact of long-term common household budgeting, the disputed provisions failing to exempt gift tax on mutual gifts between the two inevitably raise concerns of violating the protection of the right to equality. However, the legislative branch establishes requirements such as registration and monogamy for the valid establishment of a marital relationship with the intent to strengthen the public disclosure effect of marriage, maintain ethical relationships and social order, and promote public interests, which possesses constitutional justification... As for the similarity between the aforementioned partners and spouses with a legal marital relationship, the legislative branch may, based on the intent of the Constitution to protect people's fundamental rights, deliberate on social changes and cultural developments, and under the premise of not harming the marriage institution or other related public interests, grant appropriate legal protection in different circumstances, which is pointed out herewith." Yet it also failed to explicitly point out the scope of which constitutional fundamental right protects de facto spousal relationships. Some scholars refer to it as family rights independent of the right to marriage, considering that this right makes a high contribution to stabilizing people's social life, and should be a right independently protected under Article 22 of the Constitution under the condition of not obstructing social order or public interest. As for which "legislative omission" statuses under the current status might potentially be evaluated as unconstitutional, based on the passive nature of the judiciary, please allow me to refrain from answering concretely for the time being.

9. Social assistance-related laws prioritize crime prevention and establish virtual income and total household income calculation rules that do not match the economic reality of impoverished people's lives, resulting in our country's poverty population being severely underestimated. Despite having an exception condition (Article 539 Clause), it still causes individuals who, for various reasons, no longer contact their families of origin, or are unable or unwilling to obtain support from their families of origin (such as abuse survivors or adult homosexuals, etc.) to be unable to apply for social assistance when falling into life difficulties. From the perspective of our Constitution and constitutional interpretation practice protecting people's social rights, how should unconstitutional or administrative omissions regarding insufficient state protection for vulnerable groups be subjected to constitutional review? Regarding the aforementioned issues concerning the social assistance system, have people's right to survival and other fundamental rights been infringed upon?

Answer:

To realize the basic national policy revealed in Article 155 of the Constitution that the state shall provide appropriate assistance and relief to the aged, the feeble, and those who are unable to earn a living in case of calamity, the legislator enacted the Social Assistance Act, whereby municipalities and county/city governments provide living assistance, medical subsidies, emergency relief, and disaster relief to low-income households, middle-low-income households, and those suffering from emergencies or disasters within their jurisdictions, and assist them in becoming self-reliant (refer to Articles 1 and 2 of the Social Assistance Act). Paragraph 1 of Article 5 of the Social Assistance Act stipulates: "The scope of households whose population should be calculated, as provided in Article 4, Paragraph 1 and the preceding article, shall include the following personnel in addition to the applicant: 1. Spouse. 2. Lineal blood relatives of the first degree. 3. Other lineal blood relatives in the same household or living together. 4. Taxpayers other than those in the preceding three subparagraphs who claim exemptions for dependent relatives under the consolidated income tax." Paragraph 2 stipulates: "The applicant of the preceding paragraph shall be represented by a person with legal capacity in the same household. However, where circumstances are special and approved by the municipal or county (city) competent authority, this shall not apply." Paragraph 3 stipulates: "Where the personnel of each subparagraph in Paragraph 1 fall under any of the following circumstances, they shall not be included in the scope of calculated population: ... 9. Where due to other special circumstances, they fail to fulfill their maintenance obligations, causing the applicant's life to fall into hardship, and the municipal or county (city) competent authority, through visitation and assessment and considering the applicant's best interests, determines that it is advisable not to include them in the calculated population." Paragraph 4 stipulates: "The municipal or county (city) competent authority shall formulate processing principles for Subparagraph 9 of the preceding paragraph and report them to the central competent authority for recordation." Paragraph 5 stipulates: "The municipal or county (city) competent authority may assist the applicant in requesting maintenance fees from those failing to fulfill maintenance obligations under Subparagraph 4 and Subparagraph 9 of Paragraph 3." The calculation of household population and the scope of exceptions for populations not to be calculated stipulated in Paragraphs 1 and 2 of the aforementioned articles incorporate the spirit of lineal blood relative maintenance obligations related to Articles 1114 to 1121 of the Civil Code. When statutory maintenance obligors find it practically difficult to fulfill maintenance responsibilities, the state fills the shortfall based on a supplementary position to bring it up to the level sufficient for minimum living needs. Meanwhile, the provision of Paragraph 3, Subparagraph 9 of the aforementioned article is the so-called Article 539 clause; the legislator authorizes the competent authority to formulate processing principles, which should be capable of flexible application according to legislative purposes and state resources, enabling low-income or middle-low-income households to obtain living assistance prescribed by the Social Assistance Act. The situation mentioned in the prompt—where individuals in practice, for various reasons, no longer contact their families of origin, or are unable or unwilling to obtain support from their families of origin (such as abuse survivors or adult homosexuals, etc.) and cannot apply for social assistance when falling into life difficulties—involves the legislative policy of the overall social assistance system and resource allocation, and cannot be directly pointed to as a legislative or administrative omission by the state in insufficiently protecting vulnerable groups.

The right to survival differs from traditional defensive fundamental rights; what it aims to resist is not state infringement, but rather imposes an obligation of active conduct upon the state—namely, imposing an obligation on the state to create mechanisms indispensable for protecting people's minimum livelihood at the socio-economic level. Under the current system, whether using the family as a unit accords with the reality of people's lives and mutual assistance today leaves room for further review. If the operation of the social assistance system provided by the state results in a major impact on people's maintenance of a minimum standard of living and human dignity, whether it complies with the intent of the Constitution to protect people's right to survival remains to be examined and recognized.

10. In legal issues involving climate and environmental changes, the infringement upon people's rights and interests often stems not from active conduct by public authority, but from state omission or insufficient action (such as carbon emission policies). Under extreme climate scenarios, do you think vulnerable groups whose rights are about to be or are being infringed upon possess standing to sue to compel the state to fulfill its duty of protection? If the system fails to provide appropriate relief methods, does it infringe upon the people's right to litigation?

Answer:

The so-called standing to sue refers to the authority of a litigant to conduct legal litigation in their own name regarding the rights and obligations claimed and disputed in the lawsuit. If a plaintiff initiates a lawsuit and lacks standing to sue, the court will dismiss the action on the ground of lack of party capacity. However, whether individuals may file a lawsuit in court to compel the state to fulfill its duty of protection still depends on their basis in substantive law and their allegations and statements in the lawsuit, and cannot be covered solely by the protection of the right to litigation.

• Gender Identity and Fundamental Rights Protection

11. J.Y. Interpretation No. 748 points out that differential treatment based on "sexual orientation" as a classification standard falls within the scope of the right to equality under Article 7 of the Constitution, and a strict standard of review should apply. Do you think our Constitution protects people's "gender identity"? What is the basis and degree of protection? Regarding differential treatment based on "gender identity" as a classification standard, what standard of review do you think should be adopted? Do you think the people's "sexual autonomy" protected by the Constitution includes the "right to autonomous gender decision-making"? What is your opinion on "gender marker changes without surgery" (applying to change gender registration without completing gender-affirming surgery as a necessary condition)? If you support gender marker changes without surgery, do you think changing gender registration still requires other conditions (such as a psychiatrist's diagnostic certificate)? Or do you support "freedom of gender marker changes"?

Answer:

Viewed from the perspective of international human rights law, allowing transgender individuals to change their gender without surgery is already an international trend. For instance, General Comment No. 22 of the United Nations International Covenant on Economic, Social and Cultural Rights (ICESCR) clarifies that forcing transgender individuals to undergo sterilization surgery to change their gender violates compliance obligations under the Covenant. In 2017, the European Court of Human Rights also ruled that France's requirement of "irreversible physical changes (surgery)" as a condition for gender marker changes violated the provisions of Article 8 of the European Convention on Human Rights protecting private life, which I state beforehand. Internationally, conditions for gender marker changes can be broadly divided into 3 categories: the strong medical model, the weak medical model, and the self-determination model. Among these, the self-determination model respects personal gender identity much more than the first two while better depathologizing diverse gender identities. The Diagnostic and Statistical Manual of Mental Disorders (DSM) of the United States and the International Classification of Diseases (ICD) of the WHO have both depathologized gender identity. Since it is not a disease, medical intervention or diagnosis is naturally unnecessary; this is the rationale underlying the self-determination model.

Gender identity and gender autonomy should both be considered fundamental rights protected under Article 22 of the Constitution. On the issue of gender autonomy, I personally believe that a person with full legal capacity should have complete autonomous decision-making power over their own gender. However, many systems in society are still constructed based on gender, particularly the military service obligations stipulated in Article 20 of the Constitution and Article 1 of the Military Service Act. Therefore, how to harmonize and reconcile gender identity and gender autonomy when they conflict with other rights and obligations awaits continuous communication and dialogue among all sectors to reach a certain degree of consensus.

• Land Expropriation and Fundamental Rights Protection

12. In recent years, land development for major national construction projects has heavily adopted zone expropriation (such as the Taoyuan Aerotropolis, Taipei Shezi Island development project, MRT development projects, and railways), causing infringements upon people's right to housing and property rights. Do you think using "national economic development" alone is sufficient to constitute the public interest purpose for the state to initiate expropriation? Is the "zone expropriation" adopted in our legal system unconstitutional? When involving disputes over evicting residents living on state-owned land, do you think the state may purely stand in a private capacity to assert its ownership without considering the infringement upon residents' fundamental rights such as the right to housing by public authority?

Answer:

The original purpose for creating the current zone expropriation system was to ensure the utility of urban planning and public enterprises, develop building land, and obtain financial gains. Over the years, there have been numerous examples of the government implementing zone expropriation, and the resulting disputes and administrative litigation cases are also not few. In recent years especially, the zone expropriation system has repeatedly faced severe criticism, deemed to be frequently utilized by local governments to seek financial gains and speculate on land, and even criticized for violating the suitability principle within the proportionality principle of Article 23 of the Constitution. I personally believe that foreign countries no longer have a zone expropriation system, and look forward to government departments reviewing the retention or abolition of this system, especially prior zone expropriations. Before the system is abolished, it is hoped that the evaluation of the public interest and necessity of zone expropriation will be squarely faced so that it does not degenerate into a tool or accomplice for extracting land development profits.

Furthermore, Article 10 of the Constitution stipulates that the people shall have freedom of residence, aiming to protect people's freedom to choose their residence and manage their private lives without interference. However, for the necessity of promoting public interest and within the scope not violating the proportionality principle of Article 23 of the Constitution, the state is not precluded from restricting people's property rights or freedom of residence by law (refer to J.Y. Interpretation No. 709). Regarding issues involving the state evicting residents living on state-owned land, based on the defensive function of fundamental rights, when the state adopts public authority measures such as zone expropriation that infringe upon and restrict people's freedom of residence, it naturally must comply with the requirements of the proportionality principle under Article 23 of the Constitution.

• Protection of Rights of Persons in Correctional Institutions

13. J.Y. Interpretation No. 755 holds that prohibiting prisoners from seeking relief when prison management measures unlawfully infringe upon their rights and such infringement is not evidently minor is unconstitutional. Please answer:

(1) A prisoner petitioned a civil society organization, pointing out that prison personnel inspected their correspondence. The correctional institution subsequently penalized the prisoner on the grounds that this could not be verified and that the prisoner "defamed the reputation of prison personnel." In this regard, do you think the prison's punishment of the prisoner is appropriate? Does it violate Article 91 of the Enforcement Act of the Execution of Sentence?

Answer:

Article 85 of the Enforcement Act of the Execution of Sentence stipulates: "Prisons shall not punish prisoners except in accordance with the provisions of this Act or other laws, and shall not punish the same incident repeatedly." Article 91 stipulates: "Prisons shall not subject prisoners to discriminatory treatment or pretextual punishment due to the submission of petitions, grievances, or litigation relief." Paragraph 1 of Article 92 stipulates: "Prisoners may submit petitions in writing or orally to prisons, inspection panels, or other inspection personnel." Paragraph 1, Subparagraph 1 of Article 93 stipulates: "Where prisoners suffer any of the following circumstances due to the execution of sentence in prison, they may file grievances in writing or orally with the prison: 1. Dissatisfaction with dispositions or management measures taken by the prison affecting their personal rights and interests." Article 108 stipulates: "If the review panel considers the grievance to be well-founded, the prison shall make a decision to suspend, revoke, or alter the original disposition or management measure or its execution, or make a decision upon the prisoner's request or grievance. However, no disadvantageous alteration, disposition, or management measure shall be made. If the review panel considers the grievance to be groundless, the prison shall make a decision of dismissal. Even if the reasons on which the original disposition or management measure was based are improper, if it is deemed justified based on other reasons, the grievance shall be dismissed." Paragraph 2 of Article 111 stipulates: "Where a prisoner files a grievance pursuant to this Act and is dissatisfied with the decision, they shall file the following lawsuits with the administrative litigation division of the local district court where the prison is located: 1. Where it is deemed that the prison disposition exceeds the scope necessary to achieve the purpose of sentence execution and unlawfully infringes upon their fundamental rights guaranteed by the Constitution and such infringement is not evidently minor, an action for revocation may be filed." In the scenario described in the prompt, if the prisoner suffers punishment as a result, the prisoner may naturally file grievances and administrative litigation for relief pursuant to the aforementioned current system. As to whether the specific individual case violates Article 91 of the Enforcement Act of the Execution of Sentence and whether the punishment is appropriate, it shall be determined according to the circumstances of the individual case.

2. What are your views on the current status where prisoners in our country are unable to vote due to being factually confined?

Answer:

According to Article 2, Article 13, Paragraph 1, and Article 53, Paragraph 1 of the Presidential and Vice Presidential Election and Recall Act, and Article 17, Paragraph 1 and Article 57, Paragraph 1 of the Public Officials Election and Recall Act (hereinafter the disputed provisions), voting stations shall be separately established in agencies (institutions), schools, public places, or other appropriate locations depending on the breadth and narrowness of the electoral district and the distribution of electors, for electors to vote in their registered domicile. The appropriate locations listed and comprehensively referred to cannot depart from the electoral system formed through legislative consensus and foreseeable to the people—namely, voting stations established in public spaces for electors to cast secret ballots, and polling stations where individual voting stations can immediately be converted into individual ballot counting stations visible and witnessed by the unspecified public, conducting on-site public announcement and tallying of votes as the method of exercising the right to vote. It is difficult to deduce that people have a request right under the disputed provisions to demand the establishment of voting stations in places restricted and enclosed by nature due to personal factors in their registered domicile area, such as correctional institutions (prisons), for prison inmates to vote, or to demand that general members of the public of the same household registration area be thus involved to enter such voting stations to vote, or to exercise voting and ballot counting through special methods. Since this is an important matter of the voting exercise system, it can hardly be deduced to be merely an administrative, technical, and detailed enforcement method. How special circumstance electors such as inmates serving sentences in correctional institutions should exercise and have guaranteed their right to vote with free will through what procedures—including how the legislator will make comprehensive arrangements and prevent specific behaviors of disrupting the public and fair competition of the right to vote listed in Chapter VI, Book II of the Criminal Code from occurring in such closed and controlled places—falls within the discretionary scope of legislative comprehensive consideration, and the legislator should legislate as soon as possible to guarantee the voting rights of prisoners.

• Equality and Anti-Discrimination

14. Regarding a case where a public university expelled a student due to severe discrimination: If such discriminatory conduct has already been determined by other competent authorities and "their opportunity to study shall be restored," can the administrative court revoke the expulsion disposition unlawfully made by the public university, regardless of whether it has become final? If revocation is not permitted, how should the court's judgment guarantee the rights and interests of the discriminated student?

Answer:

J.Y. Interpretation No. 382 reveals: "Disciplinary or similar disposition actions taken by schools at all levels against students pursuant to relevant student status regulations or disciplinary rules, which are sufficient to change their student status and impair their opportunities to receive education, naturally constitute administrative dispositions under the Appeal Act and the Administrative Litigation Act, as they have a major impact on the people's constitutional right to receive education. Students subjected to such dispositions who have exhausted internal school appeal channels without obtaining relief may lawfully initiate appeals and administrative litigation for relief." If a public university student considers that the expulsion disposition imposed on them stemmed from severe discrimination, they may lawfully initiate administrative litigation through successive stages for relief. To elaborate, since the expulsion disposition made by the school against the student has been lawfully served on the student, if the student fails to seek relief through statutory relief procedures, the administrative disposition has already become final and possesses legal persistence (legal binding force). Until it is revoked or abolished, or loses its effect due to other reasons, its effect continues to exist. This is the rule of law principle, which, in addition to "legality," also requires the principle of "legal stability." Therefore, when the time limit for legal relief has passed and an administrative disposition can no longer be altered or revoked through ordinary relief channels (appeals and administrative litigation), formal persistence is generated. An administrative disposition possessing persistence may, under specific conditions, be revoked in whole or in part ex officio by the administrative authority, though this is an exceptional circumstance and may only be done where explicitly provided by law. For example, pursuant to Article 117 of the Administrative Procedure Act, after the statutory relief period for an unlawful administrative disposition has passed, the original disposition authority may revoke it in whole or in part ex officio; its superior authority may also do so. Additionally, under the provisions for reopening proceedings in Article 128 of the Administrative Procedure Act, after the statutory relief period for an administrative disposition has passed, under certain circumstances, the counterpart or interested party may apply to the administrative authority for revocation, abolition, or alteration. Thus, regarding the aforementioned expulsion disposition made by the school against the student, if the student was dissatisfied, they could originally have lawfully initiated administrative relief sequentially; however, because they failed to initiate administrative relief within the time limit, the expulsion disposition has already become final and possesses formal and substantive persistence. Unless there are other circumstances explicitly provided by law where it may be revoked, altered, or abolished, one may not additionally dispute the effect of the expulsion disposition through other procedures.

15. To enact the "Anti-Discrimination Act," the government commissioned the research project "Whether Our Country Should Enact a Comprehensive Anti-Discrimination Act and Legislative Proposals" in 2018, and its final report proposed a draft containing a total of 67 articles. However, the content of the "Draft Anti-Discrimination Act" announced by the Executive Yuan in May 2024 differs significantly from the draft of the research project. What is your opinion on the enactment of the "Anti-Discrimination Act"? Beyond clarifying the claim for damages regarding discriminatory conduct, what else should the "Anti-Discrimination Act" contain?

Answer:

To realize human rights protection and align with international standards, our country has successively domesticated the "International Convention on the Elimination of All Forms of Racial Discrimination" (ICERD), the "International Covenant on Civil and Political Rights" (ICCPR), the "International Covenant on Economic, Social and Cultural Rights" (ICESCR), the "Convention on the Elimination of All Forms of Discrimination Against Women" (CEDAW), the "Convention on the Rights of the Child" (CRC), and the "Convention on the Rights of Persons with Disabilities" (CRPD). Based on the equality and non-discrimination provisions of these 6 international human rights covenants, the state naturally has the obligation to respect, protect, and fulfill the right of everyone to equality and non-discrimination. Having reviewed the existing anti-discrimination provisions scattered across various laws in our country and referencing foreign legislative examples, the current legal system has the following deficiencies: lack of a definition of discrimination, insufficient areas prohibiting discrimination, relief methods mostly adopting administrative penalties making it difficult for discriminated persons to obtain substantive damage compensation, and lack of exception provisions on what does not constitute discrimination. Therefore, I support the enactment of a special act for the "Anti-Discrimination Act." As for what the "Anti-Discrimination Act" should contain beyond clarifying the claim for damages for discriminatory conduct, I believe it should focus on and examine whether the system has operational or executory difficulties in practice; otherwise, it will impose a heavy burden on the courts, leave the public unsatisfied, and fail to achieve results. Therefore, it should at least clearly stipulate principles of court investigation and the allocation of the burden of proof.