2020-08-24

Taiwanese Who Served in China are Exempted from Punishment

In 2019, Taiwan's Ministry of the Interior ("the Ministry") fined 27 Taiwan citizens who went to China and served as "director assistants" of various Community Residents Committees for violating the Act Governing Relations between the People of the Taiwan Area and the Mainland Area ("the Act").  The Act (Article 33, Paragraph Two) prohibits Taiwan citizens from holding any position in Chinese political institutions that have been listed by the Mainland Affairs Council ("the Authority").  However, the Taipei High Administrative Court ("the Court") did not agree with the Ministry's opinion, and decided against the Ministry, stating that the actions of these Taiwan citizens did not pose any threat to the national security or interests of Taiwan.
 
In 2004, the Authority had already identified Community Residents Committees as a basic level organization under the Chinese Government, and announced that Taiwan citizens are prohibited from holding positions in this organization.  Therefore, according to the Act, the Ministry fined those 27 Taiwanese people who served as "director assistants" of certain Community Residents Committees in China.  The Taiwan citizens who were fined then filed an administrative lawsuit against the Ministry's sanctions.
 
Unexpectedly, the Court stated that "it is difficult to recognize any threat to national security or interests", and characterized the prohibition as "strangling the right to work guaranteed by the Constitution", and that "prohibiting Taiwan citizens from holding this position does not comply with the principle of proportionality," and as a result, the Ministry's decision to impose sanctions was overturned.
 
In response, the acting president of Taiwan Association of University Professors, Li-Fu Chen, opined that "this position is part of the local administrative system in China, and the recruitment of Taiwan citizens to participate at the basic level of governance is based on the premise of recognizing the 1992 Consensus, however, the Court ignored the differences between the systems of China and Taiwan."
 
On the other hand, Legislator Chang-Zuo Lin pointed out that "in fact, the Court admitted that the Community Residents Committee is an organization with which Taiwan citizens are banned by the Authority from working, and thus there is no problem with the sanctions imposed.  As to whether working for the Community Residents Committees will affect the national security of Taiwan, this issue should be the Ministry's responsibility.  The Court's responsibility is merely to examine whether the Ministry complies with the legal authorization, rather than making a decision on behalf of the Ministry."
 
Attorney Di-Ying Huang stated that "the Court required the Ministry to prove the negative effects of China's efferts to unilaterally force Taiwan to become part of China, which requirement increased the burden of proof to an abnormally high level" and further that "the judges have no concept of defense of democracy, at all."
 
This judgement was issued on 6 August 2020, and it can be appealed.
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