The restrictive principles and types of basic rights

According to a law or authoritative regulation to restrict people’s basic rights cannot be

arbitrary. The State cannot use an illegal means to deter people’s illegal behavior. It was the basic requirement of rationality of a State in the modern constitutionalism. The state to legislate a law to restrict people basic rights must be in accordance with three principles of constitution, that show as followings (Lee, 2001；Shia, 1997):

(1) The principle of law reservation

According to the Constitution, Article 23, to restrict people’s basic right shall be in accordance with the law. Besides, the authority also can make an authoritative regulation to restrict people’s basic rights, however, such regulation must under the explicit authorization of the law. Moreover, to make such regulation shall not be violated the principle of re-authorized prohibition. In other words, such regulation should not be beyond the range of authorization of the law.

(2) The principle of equality

To restrict people’s freedom or rights by a law shall be in accordance with the principle of equality, which means that the same things should have the same treatments and the different things should have the different treatments, and cannot arbitrarily use different treatments.

(3) The principle of proportion

To judge weather a restriction on people’s basic rights violates of the Constitution should consider the necessity of the aim of such restriction, the rationality of restriction content and the characteristics of restriction activities? Accordingly, it must be reviewed individually by the principles of proportion and equality. The principle of proportion, believed by most of constitutional scholar that in the Article 23 of the Constitution of the R.O.C., usually includes three sub-principles that discussed as followings:

(a) The principle of appropriateness

The principle of appropriateness, also known as the principle of corresponding with the aim, means that legislating a law to impose restriction on people’s basic right should fit in with the aim. Generally, if the legislation of a law is not covered in the Article 23 of the Constitution, it represents such legislation is not correspond to such principle. This principle can also conduct ‘the principle of arbitrarily-prohibition’ and

‘the principle of inappropriateness-prohibition’. The means or measures that the State adopt to restrict people’s rights shall be appropriate and helpful to achieve the aim.

From the viewpoint of human dignity and human freedom, an inappropriate restriction on people’s moving freedom is the same as punishment.

(b) The principle of necessity

The principle of necessity, also called ‘the principle of minimum harm’, means that a necessary action, which in all possible ways to achieve the aim, can make a least harm.

In other words, it is a choice within the means under the same aim. Therefore, to restrict or intervene a basic right, even though such restriction or intervention is in accordance with the principle of appropriateness, followings are also needed to inspect.

a) How many means can achieve the aim? b) What are the restrictions that produced by these different means? c) To choose a means which holds the minimum harm.

(c) The special principle of proportion

The special principle of proportion, also called ‘the principle of ratio’. It means that even a measure to restrict basic rights is in accordance with the principle of appropriateness as well as the principle of necessity and being a minimum hurt, still can’t over the special principle of proportion. Except the aim shall be appropriate, the measure also has to be considered whether it is appropriate or whether the measure of restriction goes beyond the proportion. The State exerts its authority cannot use a measure which unbalanced with the outcome. A measure that the State enforce shall be

necessary for its aim, however, such measure cannot bring overload to the people. In other words, the measure and the outcome should be equivalent. The profit, come from the effectiveness of the goal, should be equivalent to the lost-profit, deprived from the people. While the measure didn’t reach the original aim but brought an over-burden to the people, either the aim must be modified or abandoned.

2.1.2.2 The types of restriction

In Taiwan, there are four types of direct restriction which can be adopted to limit people’s basic rights which showed as followings (Lee 2001):

(1) To be a means of punishment

To punish an offender by means of incarceration or restriction on their freedom i.e. to limit a criminal offender’s residence (Criminal Litigation, 116,120), to restrict the right of changing residence for an offender who is free form probation, to restrict the right on moving abroad for an obligor who didn’t pay his/her taxes over a certain amount (Taxes Levy Act, 24-3), to commit a hit-and-run offence causing death/injury will be punished an incarceration of 6 months to 5 years etc.

(2) To ensure authority of the State can be realized

According the Epidemic Prevention and Control Act, the authority has the right to limit people to get in and out the fashion area, while an epidemic disease is widespread. A person, who is in a restrain period, can’t depart from his/her restrain area unless having permission (Ensure Safety Act, 74-2-5). Whether to leave or enter a country must have a passport and visa, unless having a permission of foreign ministry, the authority can’t issue a passport for a country having no relationship with the Republic of China (Passport Act, Article 14).

(3) To advance public welfare

The management of high bearing capacity on freeway is on the aim of promoting its traffic smooth, however, it inevitably restrict people’s moving freedom.

(4) To maintain social order

In order to maintain social order, it is necessary to restrict people to use transportation models such as abiding with traffic light, driving on the right side, restraining a motorcycle from using freeway, speeding prohibition.