Nora Shih
The Taipei High Administrative Court rendered the 108-Su-1714 Decision of June 3, 2020 (hereinafter, the “Decision”), holding that the different treatments of the citizen’s rights and obligations of an individual with household registration in the Mainland area or holding a passport issued by the Mainland area under Article 9-1 of the Statute for Cross-Strait Relations and of other citizens with dual nationalities do not violate the principle of equality under Article 7 of the Constitution.
According to the facts underlying this Decision, the Plaintiff is a citizen of the Republic of China and has a registered household in the Taiwan area and a national identification card. He previously visited Taiwan for sight-seeing as a citizen of the Mainland area and subsequently applied to the National Immigration Agency (hereinafter, the “NIA”) for an extension of his tourism stay in Taiwan on the ground of his illness. Since the NIA checked and found that the Plaintiff had also registered his household in Taiwan, the NIA notified the Defendant (i.e., the Taipei City Wanhua District Household Registration Office) to cancel the Plaintiff’s household registration in the Taiwan area in accordance with Point 4 of the Operating Guidelines for Cancelling the Identification and Household Registration of the Citizens of the Taiwan Area. The Defendant subsequently determined as a result of its review that since the Plaintiff had registered his household in the Mainland area and received a Mainland area passport, the Defendant elected to cancel Plaintiff’s household registration in accordance with Article 48-1, Subparagraph 6 of the Household Registration Law and obtained an approval from the Ministry of the Interior (Original Disposition 1). The Defendant also notified the Plaintiff’s spouse. The Defendant also requested the Strait Exchange Foundation to inform the Plaintiff that his household registration in the Taiwan area had been cancelled in accordance with Article 24, Article 48-1, Subparagraph 6 and Article 62, Paragraph 1 of the Household Registration Law, and that the Plaintiff is required to return his national identification card (“Original Disposition 2”; Original Disposition 2 and Original Disposition 1 are collectively referred to as the “Original Dispositions”). Dissatisfied with the Original Dispositions, the Plaintiff filed an administrative appeal, which was subsequently dismissed and not accepted by the administrative appeal agency for being groundless. The Plaintiff subsequently brought an administrative action.
According to this Decision, the principle of equality specifically stipulated in Article 7 of the Constitution means substantive equality. The legislative organ can certainly make reasonable different treatments based on the differences in the nature of the things under regulation according to the value system of the Constitution. With respect to cross-strait affairs, Article 11 of the Amendments to the Constitution provides: “The relationship of rights and obligations and other affairs between the people in the free area and the Mainland area may be handled by special legal provisions.” Article 9-1 of the Statute for Relations between the People of the Taiwan Area and the Mainland Area (hereinafter, the “Provisions at Issue”) provides: “(Paragraph 1) The people of the Taiwan Area may not have registered households in the Mainland area or hold passports issued by the Mainland area. (Paragraph 2) Except for the situations deemed necessary by the authorities concerned out of special considerations, any person who has a registered household in the Mainland area or holds a passport issued by the Mainland area in violation of the provisions of the preceding paragraph shall be deprived of his/her status as a citizen of the Taiwan area and his/her rights of election, recall, initiative, referendum, holding military positions or public offices, and any other rights derived from household registration in the Taiwan area, and his/her household registration in the Taiwan area shall be canceled by the household registration authorities; provided that the responsibilities and obligations resulted from his/her status as a citizen of the Taiwan area are not excused or exempted. (Paragraph 3) Any of the people of the Taiwan area who has registered his/her household in the Mainland area or holds a passport issued by the Mainland area before the effective date of the amendments to this Statute is not deprived of his/her status as a citizen of the Taiwan area if s/he submits to the Ministry of Interior relevant proofs that he/she has had canceled his/her household registration in the Mainland area or abandoned his/her passport issued by the Mainland area within six months after the effective date of the amendments to this Statute.” The legislative reasons of such provisions indicate: “In order to avoid dual status and overlaps or conflicts of rights and obligations as a result of the circumstances where the people of the Taiwan area registered their households in the Mainland area or hold passports issued by the Mainland, the international norm of a single registered household is considered as reference. In addition, to address the need of administration and to protect national security and interest, it is specifically stipulated in Paragraphs 1 and 2 that the people of the Taiwan area shall not register households in the Mainland area or hold passports issued by the Mainland area and will lose their status as the people of the Taiwan area and their rights of election, recall, initiative, referendum, holding military positions or public offices as well as rights derived from a registered household in the Taiwan area. However, their responsibilities and obligations as the people of the Taiwan area will not be excused or exempted as a result. The purpose of such provisions is to clearly define their status and prevent the people of the Taiwan area from evading their obligations and responsibilities in Taiwan (e.g., military service, tax payment, legal obligations, judicial sanctions, etc.) by obtaining the status of the people of the Mainland area. 」
According to this Decision, an observation of the legislative reasons of the Provisions at Issue indicates the position of the legislators was that although the Taiwan government, based on its democratic system, should accommodate different opinions and pluralistic values in light of the great differences in the nature of the government systems on both sides of the Strait, still the Taiwan government should not allow any individual or organization to undermine the core essence and value of the constitutional democratic system of Taiwan by rigging and manipulating the democratic mechanisms. It should be noted that the two sides of the Taiwan Strait are currently in a state of confrontation and separation with a huge gap in the maintenance of, and adherence to, democratic values, not to mention that political rights such as election, recall, initiative and referendum involve the formation of the will of the citizens and the maintenance of the constitutional order of freedom and democracy. Holding a passport and registering a household signify the nationality and self-identification and are closely linked to the exercise of a citizen’s rights and obligations. If the people of this country are allowed to form a dual status by registering their households in the Mainland area or holding passports issued by the Mainland area without any restriction, overlaps or conflicts of rights and obligations will occur. In view of the current political situation across the Taiwan Strait, the circumstances prohibited by the Provisions at Issue in reality may seriously undermine national security and hamper Taiwan’s administrative needs for household registration. Therefore, the formulation of the Provisions at issue is well justified in terms of their purposes. The Provisions at Issue specifically require that if the people of the Taiwan area register households in the Mainland area or hold passports issued by the Mainland area, they will lose their status as the people of the Taiwan area and their rights of election, recall, initiative or referendum and holding positions in the military or public offices as well as rights derived from household registration except for special considerations. Such provisions seek to avoid the conflicts of obligations for the people of the Taiwan area when they hold passports issued by the Mainland area or register households in the Mainland area and help achieve their legislative purposes. In addition, since the Provisions at Issue are special provisions formulated in accordance with Article 11 of the Amendments to the Constitution to deal with the cross-strait relations, their effects only extend to those who register their households in the Mainland area or hold passports issued by the Mainland area and not to other people with dual nationality. Moreover, the cross-strait relations are more important to those between Taiwan and other countries due to the political, cultural and social differences between the both sides of the Taiwan Strait and to historical factors. Based on the foregoing reasons, the different treatments in terms of the rights and obligations of citizens under the Provisions at Issue to the people of the Taiwan area who register households in the Mainland area or receive passports in the Mainland area and other citizens with dual nationality are actually reasonable and do not violate the principle of equality under Article 7 of the Constitution.
Therefore, it was concluded in the Decision that the measures taken by the Defendant, who found that the Plaintiff had registered households in the Mainland area and had held a passport issued by the Mainland area, rendered the Original Dispositions to elect to cancel the Plaintiff’s household registration in Taiwan and requested the Strait Exchange Foundation to notify the Plaintiff that his household registration was canceled and that the Plaintiff should return his national identification card, are lawful. In addition, the decision on the administrative appeal, which upheld the Defendant’s disposition, is also legally appropriate. The Plaintiff’s request to set aside the decision on the administrative appeal and the Original Disposition is groundless.