萬國法律事務所

Article 18 of the Act Governing Relations between the People of the Taiwan Area and the Mainland Area (2003) stipulates that in certain situations, any person from China who legally enters Taiwan may be deported, and may be temporarily detained before deportation such provision has been declared unconstitutional by the Grand Justices and shall cease application within the next two years.

The Grand Justices found that the provision on deportation provides no opportunity for persons from China to defend themselves, which deprivation is a violation of due process, and is inconsistent with the freedom of movement guaranteed by Article 10 of the Constitution.

As for the stipulation regarding permitting temporary detainment, the Grand Justices found that it fails to provide any reason for the temporary detainment, and that such failure violates the principle of legal certainty. Also, the provision does not offer persons temporarily detained immediate judicial relief.

Moreover, the temporary detainment has no limit on the period of detention and when the period of detainment of a person goes beyond the period, such extension is not reviewed by a court. Thus, the stipulation violates due process and is inconsistent with Article 8 of the Constitution, which guarantees personal freedom, and is contrary to the principle of proportionality set forth in Article 23 of the Constitution.