03 11月 2018 Taiwan weekly legal update: J.Y interpretation No. 768; New Rule Benefits for Referendum
FSC: J.Y interpretation No. 768：Consistutional to Dismiss Doctors with Dual Nationality from Government Hospital.
In 1979, Mr. Jin-liang Liu had been hired by Taipei City Hospital Yangming Branch as a Medical Doctor and permitted to work as a Licensed Medical Personnel holding a public servant position later on. However, in 2012, the Department of Health of Taipei City Government discovered that Mr.Liu possesses Canadian nationality and therefore dismissed him under Article 28, paragraph 2 of Civil Service Employment Act, that said, “ Person who has condition below are not permitted to be in civil service: 2. Person who has both R.O.C and foreign nationality”.
Mr. Liu proposed a petition for constitutional interpretation after the lawful remedies for infringement of the right to work given by the Constitution have been exhausted. In his opinion, the Civil Service Employment Act that exclude dual nationality people from serving in public sector violated not only from the principle of clarity and definiteness of law but from the right of equality, granted by Article 7 of the Constitutions as well, since Article 7 declared that all citizens of the Republic of China, irrespective of sex, religion, race, class, or party affiliation, shall be equal before the law.
The Grand Justices of the Constitutional Court adjudged the petition and uninformed interpretation of statute on October 5, stating that the disputed regulation contradict neither to the principle of clarity and definiteness of law nor to the right of equality under J.Y interpretation No. 768.
First of all, with regard to the principle of clarity and definiteness of law, it is not difficult to understand from the legislative purposes, the literal meaning of the article itself and the current systematic interpretation. Whether the facts of the case is subject to the law and are foreseen by the regulated people can be confirmed by the court ruling; there is no violation of the principle of legal clarity. As a result, the dual citizenship physician is subject to the regulation. That is to say, the employment of Medical service shall be regulated by the Civil Service Employment Act unless, under certain circumstances, the other laws and regulations can be applied.
Second, the principle of equality prescribed by Article 7 of the Constitution does not mean a formal equality in an absolute and mechanical sense. Rather, it aims to guarantee the substantive equality of the people in the sense of equal protection under the law. The legislative body, based on the value system of the Constitution and the purpose of enactment, could consider the differences between the addressed subject areas and reasonably treat them differently. In this petition, the disputed fundamental right is the right to hold public offices. The state has a larger discretion on whether and which sector to hire foreigners as civil servants. Since the classification of occupations does not involve in the suspicious classification of equality review, it shall be applied to a rather lenient standard for constitutional interpretation.
Third, although the applicant of the petition was a doctor from the public hospital, the Constitution court believed it is more appropriate to interpret this case with the right to public service instead of the right to work, as doctors working in a government hospital shall be generally considered as civil servants.
Article 18 of the Constitution, the basis of Civil Servant Employment Act, regulated that the people shall have the right of taking public examinations and of holding public offices. Considering that trust and loyalty play a crucial role in civil servant working for the country, it is legitimate that the government showed less flexibility when it comes to the employment of civil servant. If the indirect restriction on the right of holding public offices aims to pursue important public interests and the applied method is substantively related to achieving the objective, it is not contradictory to the principle of proportionality.
In conclusion, ensuring the sense of loyalty and trust between public servants and the state is a legitimate goal. Dismissing civil servants of foreign nationality is considered as an appropriate method to protect the state interest, as it is difficult to adjudicate that the applied method does not have a reasonable relationship with the objective. Thus, the execution of dismissing doctor who owns foreign citizenship from public servant position is constitutional. Article 28 of paragraph 1 and paragraph 2 of the Civil Servant Act is in compliance with Article 7 and Article 18 of the Constitution that reinforce the right to equality and the right to public service.
New Rule Benefits 600,000 First-time Voters Take a Leave for Referendum
Taiwanese citizens are to vote at ten referenda and the so-call nine-in-one elections on November 24. Since a major change was made last December, Taiwan voting age for referendums has been lowered to 18; over 600,000 first-time voters are eligible to take part in the referendum this year. However, it brings out an issue. With the original regulation, workers aged from 18 to 20-year-old are not permitted to take a leave since they are not granted for the right to vote for general election. As a consequence, the Minister of the Labor (MOL), Ming-Chun Hsu, stated that a new administrative rule will soon be published to enable first-time voters in privilege of taking a leave on the election day on October 22.
In response to the interpellation in the legislative, Hsu claimed that the Executive Yuan had already issued an administrative rule, stated that official leaves can be taken when it comes to referenda. MOL have been working on the administrative procedure to implement the policy by appointing the referendum day as the national holiday. The official statement will be released along with Central Election Commission’s announcement.
On the basis of the original Labor Standard Act Article 37, workers, who are qualified as voters, shall be granted a paid leave on the voting day. If employers incline to have their employees staying in their job position, a request has to be done in advance alongside with wages paid at double regular rate. However, the referendum was not considered as election in the Labor Standard Act previously, which causes to some of the workers, who aren’t voters of the local election but has the rights to vote for the referendum, cannot be in the privilege of taking a leave.
According to Qianyu Xie, the chief of the Department of Labor Standards and Equal Employment, the difficulties of setting up a new regulation for the leave on election day lies in the fact that the voting right does not necessarily apply to all workers. Only certain workers, who are qualified as voters, can be in the privilege of taking a leave. Those who are excluded from the voting right, such as Foreigner workers, part-time workers, are not qualified to take a leave or to get double-paid. Thus, the original regulation for National holidays or General holidays isn’t applicable in this case.
Xie further explained that, under the new administrative rule, if it happens to be a regular leave or holiday on the election day, there won’t be another compensatory leave; whereas workers can ask for a paid leave on the workday, or ask for a few hours leave of absence from work, and return at the post after voting. In this condition, the employer cannot disapprove of the leave or he must granted a double payment.
Thus, the MOL stressed that it is important for the management to inquire the employee whether he is willing to work on November 24 in advance. If a employer declines to grant the leave or pay for double wage, the violation of the law will result in a fine of NTD$20,000 to 200,000 as well as the pay-off for the employees.
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