THE ＧＬＯＢＡＬＩＺＴＩＯＮ ＆ ＧＯVＥＲＮＡＮＣＥ ＰＲＯＪＥCＴ， ＨＯＫＫＡＩＤＯ ＵＮＩＶＥＲＳＩＴＹＷＯＲＫＩＮＧ ＰＡＰＥＲ ＳＥＲＩＥＳ

Reform of the Legal System of Local Autonomy
and Information Disclosure in Public Administrationin Taiwan
Ⅳ−１７

h

＊

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k

Paper for the Workshop Local Governance in a Global Era –In Search ofConcrete Visions for a Multi-Level Governance, 7-8 December 2001＊

None of these papers should be cited without the author’s permission.

Reform of the Legal System of Local Autonomy and Information Disclosure in Public
Administration in Taiwan
Shiow-Ching Tsai
Tamkang University, Taiwan
I.

Ideas and Realities of the Guarantee for Local Autonomy in the Constitution of

Republic of China (ROC)(1) Structural Characteristics of Institutional Guarantee for Local Autonomy in theConstitution of ROC (For the use of ruling mainland China)
The Constitution of ROC was established to rule Mainland China, which
possesses vast land, and four hundred million in population.

There are the following

characteristics of institutional guarantee for local system and local autonomy:a. Considering the local system, two levels of system are adopted: one is theprovince and the other prefecture.

Fundamental rules for autonomy ofprovince and prefecture is called “general rule about province and prefecture.”
According to this rule, basic law for autonomy of the province and prefectureis established, which is called “law about autonomy of province andprefecture.”

In the institutional guarantee for local autonomy, there arelegislative power and executive power for the province and prefecture, which
is autonomy of local public entity. As for autonomy of residents, there are
direct elections and referendum, stated in the Constitution.
b. Considering the allocation of administrative tasks, the tasks of the national
government, province, and prefecture are divided into legislative andexecutive power.

Each authority is defined in detail, where each level has

legislative power exclusively; that is, legislative power belongs only to one
type of government, whereas multiple governments can share executive power.
This is why tasks dealt by the province are the province’s legislative tasks
and/or executive tasks.

Tasks dealt by the prefecture are prefecture’s

legislative tasks and/or executive tasks. If allocation of tasks is ambiguous,
the problem is to be judged by the principle of the nature of task (policies thatshould be applied to the whole nation should belong to the central
government; policies that should be applied to prefecture, should belong to theprefecture).

If a dispute still remains, the national legislature will make a

final decision on it.
(2) Problems of Local Autonomy Stemming from Pre-modern Authoritarian Politics

1and the Confinement of Kuomintang (KMT) Power in Taiwan
The Constitution of ROC, established in 1946 and enacted in 1947, came to be
applied by force in Taiwan since the KMT evacuated to there, after the civil war with
the Communist Party, in 1949.

In this historical context, the Constitution of ROC(which originally was established to rule mainland China) was/is applied to Taiwan,
without the consensus of Taiwanese people.

Thus, many people raised questions to

the legitimacy of the Constitution, which has been an issue of political confrontation.
There are some problems regarding the government structure stated in theConstitution of ROC, especially the principle of division of five powers, separation ofpolitical power and executive power, and the establishment of the national convention.
Moreover, there are many contradictions in the implementation of the Constitution,
which result from the application of the Constitution of ROC to Taiwan. For several
decades, these contradictions have been problems that need to be examined.
While

the

Constitution

of

ROC

was

enactedin1947,

so-called“super-constitutional wartime mobilization provisional ordinances” was established in
the same year, while martial law was proclaimed in 1949. Taiwanese society became
totally ruled by wartime martial law.

This is the reason why the ordinance destroyed

supremacy of the Constitution of ROC.

The structure of the Constitution changed

into one that adapted to martial law.

Under the “super-constitutional ordinances,”laws for wartime mobilization and martial rule were established one after another, toviolate democracy and basic human rights.
From this historical experience of pre-modern authoritarian politics, Taiwan
developed its own unique local system and local autonomy, despite the institutional
guarantee for local autonomy stated in the Constitution.

This caused the following

problems:(A) Problems stemming from confinement of KMT power in Taiwan
a. Redundancy of the national government and the first-level local
government
In Taiwan, KMT confined its rule in Taiwan and also regarded as aprovince of mainland China.

When we look at the range of rules, first-level

local government of the province of Taiwan rule 98% of ROC.

When we lookat the population of Taiwan province, it is over 80% of ROC.

As a result, thefirst-level local government and national government are redundant, which isa peculiar system, without any parallel.

This redundancy causes the

problem of democratic legitimacy of the national and local government, since
the President and Governor came to be elected directly since 1992.

If theGovernor gets more votes than the President, his/her democratic legitimacy
becomes stronger than the President, and the ruling power of province also

2

may become stronger than the national government.
b.

From a two-tier system of the Constitution of ROC to a three-tier system
of Taiwan
Although the Constitution of ROC establishes a two-tier system ofprovince and prefecture, Taiwan actually has a three-tier system of province,
prefecture, and municipality.

The municipality is not a local public entitythat is guaranteed by the Constitution.

In addition, the vertical,

authoritarian relationship between the national and local government caused
inefficiency and irrationality in administration.
(B) Problems caused by pre-modern political institutiona.

Autonomy not defined by law but by ordinance or regulation
During the civil war, the legislature was not able to use its power, thus,

they did not establish “general rules on local autonomy” that embodied
constitutional guarantee for local autonomy.

Neither “provincial autonomy

law” nor “prefectural autonomy law” was established in the Constitution;
therefore, executive orders established local autonomy in Taiwan from 1949 to
1994.
1.

The executive branch of Taiwan province was established by“organization law of provincial government (November 1926),” and“provisional rules on administration of provincial government (1936).”
Thereafter, “detailed rules on administration management in Taiwan
provincial government,” was established by Taiwan province itself, basedon a mandate from executive branch.

Provisional assembly of Taiwan

province was established by “rule of provisional assembly of Taiwan
province,” proclaimed by the executive branch in September 1951; later, it
was changed to assembly of Taiwan province, by the order of the executive
branch, in June 1959.

Fukien province of the ROC was similarly

treated.
2.

Concerning the structure of the local government in Taiwan, it is athree-tier system consisting of province, prefecture, and municipality.
The legal basis of local government is “regulation on local autonomy by
prefecture and municipality in Taiwan province.”

Executive office ofprefecture and municipality are established by “regulations about
executive office of prefecture and municipality of Taiwan province” andsimilar rules for municipality are directed by prefecture. Legal basis oflegislative organ of the prefecture and municipality is based on“regulations on assemblies of prefecture and municipality in Taiwan
province” proclaimed by Taiwan province.
3.

There are two “special cities”, Taipei and Takao.

3

Taipei became aspecial city in 1967, and its status is based on “regulations on Taipei city
organization” established by the executive branch.

Executive office andlegislative organ of Taipei are established by “regulations of Taipei city
government office,” and “regulations about Taipei city assembly.”

Takao

became a special city in 1978; its status and organization are defined bysimilar regulations established by the executive branch.

Local

autonomy based on these orders and regulations are authorized bySupreme Court (number 259, April 13, 1990).
b.

The lack or decay of autonomous power

In the pre-modern authoritarian regime, party, military, politicians,bureaucrats, and business merged, and the centralized system encroached orundermined local autonomous power.

For example, local governments havevery limited powers in terms of legislation, because their autonomy was notbased on laws but on ordinance and regulation by the executive branch.
There are only few businesses that the local governments can deal with theirown discretion.

Most businesses were commissioned by the central

government to the local government.

Concerning the autonomy on publicfinance, although they had taxing power, but the portion of local tax is quite
small, therefore the local governments depended on the subsidy from thecentral government for fiscal revenue. Concerning the authority of personnel
management, the Governor of the prefectures and the mayors ofmunicipalities are elected directly. Premier of province and mayors of special
cities are appointed by the President, based on a list created by the executive
branch.

There was a vertical relationship between the central and local, andthe latter was strongly supervised by the former.
(3) Problems of Local System in the Constitution of ROC in terms of Allocation of Tasks
Chapter ten of the Constitution defines the tasks of the central government,
province, and prefectures in detail.

If there is an ambiguity on the allocation tasks

between the center and local, “principle of the nature of tasks” should be applied.
This principle is derived from James Soong’s idea of “equal power principle” (neither
tilting toward the center nor the local). However, the allocation of tasks based onthese principles has the following problems:A) Equal power principle is just a guideline for allocation of tasks, not a yardstick.
Nobody denies that diplomacy, defense, legal system, and citizenship belongs to thecentral government, but we should investigate whether national railway, airline,
post, telecommunication, tax, national enterprise, and national bank should be dealt
with by the central government.

4B) Regulations on allocation on tasks are not always a yardstick.

The definitions oftasks of national, province, and prefecture, do not come from contents and nature ofbusiness, but from levels of administration. The same jurisdiction is shared by thecentral, province, and prefecture (for example, education, police, public health), or
shared by province and prefecture (agriculture, water supply, fishery, publicconstruction).
C) We cannot distinguish regulation about allocation of tasks from definition ofautonomous tasks and commissioned tasks.

For example, Article 123 says

“ prefecture resident has a right to referendum about autonomous tasks,” and Article
127 states, “ governors implement commissioned tasks” from the central orprovincial government.

It is doubtful we can distinguish autonomous tasks andcommissioned tasks based on Article 108-110.

These articles allocate task on

differentiation on legislative power and executive power, but it is not clear whether
such differentiation can be a basis for distinction between autonomous tasks andcommissioned tasks.

In other words, it is not clear, tasks that local governmentthat have executive power and legislative power, is classified as autonomous tasks
and tasks that local governments have only executive power is classified ascommissioned tasks. We still need to investigate whether tasks that the national
government has legislative and executive powers or province has only executive
power should be classified as task of the central government, not autonomous tasksof province. We have similar questions between province and prefecture.
II.

Development of Local Autonomy in Taiwan(1) BackgroundTaiwan was imposed pre-modern authoritarian, wartime mobilization martial
law system for about fifty years, but there have been changes in politics, society, andthe legal system of Taiwan, since the second half of 1980’s.
In terms of politics, martial law was lifted in 1987, and the authoritarianregime collapsed.

Taiwanese society has been moving from a pre-modern

authoritarian society to a modernized democratic liberal society.

In addition, theKMT that continued their authoritarian rule for about fifty years was ousted replacedby the Democratic Progressive Party (DPP) in 2000.

Large-scale realignment is goingon, and democratization and liberalization is accelerated.

KMT tried to build asociety based on Chinese identity through education policy based on reunification ofChina, since it came to Taiwan in 1949.

However, as state power structure dominatedby Mainland Chinese was undermined and political structure realigned, unified

5Chinese identity becomes diversified and transformed and multiple identity is growing.
Taiwan identity, which was suppressed for a longtime, is rapidly growing.

At thesame time, ethnic identity, including Hakka and aborigines, are becoming significant.
Multi-ethnic society is developing in Taiwan, and each group is seeking respective
identity.

When we look at legal studies in Taiwan, there was no place for legal studies

of sovereign states, since Taiwanese people did not have national sovereignty for a longtime.

During the colonization of Japan, 1895-1945, Taiwanese law system depended

on the Japanese law system through “special law for the colonies”, and “principle ofextension of Japanese law.”After 1949, KMT imported Chinese law to Taiwan, thus,

genuine Taiwanese law and Japanese law system were destroyed.
history with enforced, internalized foreign law.

Taiwan history is a

However, the collapse of the power

structure dominated by Mainland Chinese, and the development of Taiwanese identity,
promote study of Taiwanese law and legal system or the “Taiwanization” of legal
studies.
law.

In this sense, Taiwan is set free from compulsory internalization of foreign

Time has come to construct their own legal system.
Steps for gradual reform on local autonomy, since pre-modern authoritarianregime, are in motion.
(2) Development of Local Autonomy after the Revision of the Constitution in
1992—Local Autonomy based on Law(A) Revision of the Constitution in 1992
Without a “general rule on local autonomy of prefecture and province,” local
autonomy was established by ordinances and regulations.

Considering thisproblem, they amended the constitution, to put off the “general rule.” Amendment
clause 17 states that, “clause for general rule for local autonomy should not beapplied and provincial autonomy should be supervised by the executive branch, andthe prefectural autonomy should be supervised by the provincial government.”
However, this amendment does not include rules about municipality, therefore,
constitutional status of municipality still remains ambiguous.
(B) “Law of autonomy of province and prefecture” and “Law of autonomy of
special city”
These two laws were established based on amendment clause 17, on July 29,
1994.

Law of autonomy of province and prefecture consists of general rules, rights

and duties of residents, autonomous tasks, autonomous organization, autonomous
public finance, autonomous inspection, and attachments, which are stated in the
total of 7 chapters and 66 clauses.

The differences from the old system include thefollowing:a. Province, prefecture, municipality are corporate bodies, which deal with

6

autonomous tasks, and commissioned tasks (clause 2, section 1)
b. Residents of province, prefecture, and municipality have rights forreferendum on autonomous tasks, as well as disclosure of local governments(clause 10, section 3&4)
c. Autonomous tasks of province, prefecture, and municipality are definedfrom clause 12 to 14.

If there is a dispute, the national legislature settles it(clause 15).
d. Premier of a province should be elected by public election (clause 35, section
1).
e. There is a hierarchy of legal system where law of national government isplaced at the top, followed by provincial law, prefectural regulations,municipal regulations, consecutively.

If resolution by provincial assembly on

autonomous tasks is ruled unlawfully, that will be nullified.

If resolution ofprovincial assembly on commissioned tasks is ruled, which goes against thelaw of the central government, this will also be nullified (article 28, section1).
Similar regulation should be applied to prefectural and municipal assembly.
If there is a dispute whether a resolution goes against laws or ordinances, theSupreme Court will judge it (clause 28, section 5).
f. Supervising bodies of strong authority can nullify, modify, abolish or
suspend decisions by local governments, on both autonomous tasks andcommissioned tasks (article 54).

Executive branch supervises province,

province supervises prefecture, and prefecture supervises municipality(article 6).

If there is a dispute whether administration by local governments

goes against the law, the Supreme Court will judge it (article 54, section 7).
Supervising bodies have authority of execution by proxy (article 55).

If localgovernments neglect their duties, that duty is classified as a case where
execution by proxy may take place.
“Law of Special City” is basically similar to “law of province and prefecture,”that are stated in the total of 7 chapters and 56 clauses; the province and prefecture
are replaced by special city.
(3) Development of Local Autonomy after the Division of the Constitution of
1997—Downsizing of Taiwan Province(A) Revision of the Constitution of 1997
The Constitution was revised in order to clear the redundancy of the national
government and the province of Taiwan, as the first-level local government. The
main contents of the amendment are as follows:a. The relationship between the executive and the legislative branch in

7

Taiwan province was re-established.

Amendment clause 9, section 2, states,“the tenth assembly of the Taiwan province and premier of Taiwan province
will expire on Dec 20th, 1998, and from this time on, there will be no public
election of provincial assembly or premier of the province.”

That is to say, theamendment abolishes public election of premier of the province.

Instead, it

introduced head of the province, who is appointed by the president, based on alist submitted by the executive branch.
b. Considering the legislative branch, provincial assembly was changed toprovincial council, and its members are appointed by the president, based on alist submitted by the executive branch.
c. Task of provincial government is limited to supervision of prefecturaladministration.
(B) Establishment of provisional ordinance on the role of Taiwan provincial
government, and its tasks and organization in 1998
Amendment clause 9, section 3 states, “After the suspension of public election ofmembers of provincial assembly and premier, the role, tasks, and organization of
Taiwan provincial government should be determined by the laws.

Based on thisclause, the “provisional ordinance on the role of Taiwan provincial government, andits tasks and organization” was established on October 28th, 1998.

The pillars of

this provisional ordinance are as follows:a. Taiwan provincial government is defined as a branch office of the executive
branch, not an autonomous public entity (provisional ordinance clause 2,
section 1).
b.

Task

of

Taiwanprovinceislimitedtosupervisingprefecturaladministration, implementing provincial government administration, andimplementing tasks commissioned by laws or orders of the executive branch.
In other words, autonomous administration is totally suspended.
c. Head of province is appointed by the President, based on the list submitted
by the head of executive branch.
d. Tasks that provincial government used to have should be transferred to thenational government or prefecture and municipality according to nature oftasks and capability of governments.

The tasks that the executive branchcommission to the provincial government by order, are exceptions to this rule(clause 4, section1).

The provincial government and other attached organs

and public schools should be downsized, annexed, reorganized, abolished, or
privatized through coordination of administration (clause 4, section 2).
e. The national government will undertake assets and debts of Taiwan
provincial government (clause8, section 1).
f. The replacement of civil servants of Taiwan province is regulated from8

clause 12 to 19.
g. Taiwan provincial assembly was abolished on December 21, 1998, andchanged to Taiwan provincial council.

Members of this council, between 21

to 29 people, should be appointed by the President based on a list submitted
by the head of the executive branch. The term is three years (clause 20,
section 1 & 2).
h. This provisional ordinance is valid from December 21, 1998 to December 31,
2000, but the amendment of the provisional ordinance is extended for anotheryear.
Downsizing of Taiwan province consists of three stages.

The first stage from

December 21, 1998 to June 30, 1999; during this time, the executive branch placed the
head

of

province,andestablishedtheprovincial

Organization of provincial government was status quo.
July1, 1999 to December

31st,government

committee.

The second stage was from

2000; the government was supposed to finish thecoordination of the role, administration, organization, and personnel of the Taiwan
provincial government.

However, the coordination did not finish in time, so thesecond stage was extended for another year.

In the third stage, the provisional

ordinance will expire and new law on local system will be applied.
(4) Establishment of the Law of Local System (January 25th, 1999) and Relating
OrdersWith the organizational reform of the province, based on amendment clause 9of the Constitution and the establishment of the provisional ordinance, “the law ofautonomy of province and prefecture,” and “law of special cities” established in 1994,
should be re-considered.

When the provisional ordinance expires, construction oflegal system of local government is urgently required.

In this context, law of local

system that integrates and rationalizes the above laws was established on January
25th, 1999.

This new law has the following regulations:a. There is a clear definition about autonomous tasks and commissioned tasks(clause2, section 2 &3).

Autonomous tasks mean tasks that local government

can legislate and execute, based on the Constitution or this law, or tasks that
local government can implement or coordinate based on regulation of laws.
Commissioned tasks mean tasks that local government implement under thesupervision of superior government, based on laws or ordinances.
b. Names of local rules are classified as the following:“Autonomous

ordinance” is rules that local legislature establishes on autonomous tasks.
“Autonomous regulations” are rules local executive branch establishes on
autonomous tasks (article 25). In local ordinances, the name of the local
government should be placed at the top (clause 26, section 1).

9

Local

regulations are established, based on delegation of executive powers or
authorities given by laws.
Subjects of autonomous ordinance are defined as follows in clause 28:“Subjects that local legislature should decide based on law or autonomous
ordinances”; “subject that establishes control, deprive, or limit rights ofresidents or impose duties on residents”;“Organization of enterprisemanaged by local governments”; “other subjects that local legislature regards
as tasks of local governments”.
Rules about commissioned tasks are rules that special cities, prefectures,and municipality establish in order to implement commissioned tasks fromsuperior government, based on legal authority, law, or delegation from thecentral government (article 29)
Autonomous rules mean a rule that local legislature establishes as an
ethic code for assembly member, similar to the “code of conduct of members ofnational legislature” (clause 31, section 1).
__________local legislature: autonomous ordinance
Autonomous tasks| _________ local executive branch: autonomous regulation________local legislature: no rules
Commissioned tasks|________local executive branch: commissioned regulation
Ethical code of local assembly: autonomous regulation
If autonomous ordinance is ruled against the constitution, law, order
based on law, or autonomous regulations of superior local government, it willbe nullified (article 30, section 1).

Autonomous regulations have similar

restraints. If commissioned regulation is ruled against the constitution, or
the law of the central government, it will be nullified.

If there is a dispute onwhether rules of local governments go against the constitution, law, orders
based on law, or autonomous regulations of superior local government, local
government can appeal to the Supreme Court (clause 30, section 5).
c. General guideline on local administration and local legislature were
established and enacted on August 12th, 1999 (Clause 54, 62).
d. Special city and prefecture can be fined up to hundred thousand Yuan orthey may have their permit suspended or nullified, and/or be ordered to action
or inaction for the violation, for a specific period of time (clause 26, section 2
&3)
III.

Local Autonomy in Taiwan in terms of Globalization based on Information

10

Disclosure(A) Effort for electronic government and information disclosure in Taiwan
Since the 1990’s, information technology has been the common challenge formany countries, because information technology has penetrated into the entire
government or all fields of public administration.

The idea of “electronic

government” is one of the most remarkable aspects of globalization, which will
exchange the mutual relationship among the state, local government, society, andthe people.
Globalization in the context of this paper means “globalization of public policy”
not “globalization of ideology.”
Many countries share the purpose of “electronic government”; that is to say,making public administration more effective and efficient, making public
administration more open and transparent, improving the quality of public services,
democratizing public administration, and building a fair and just society that people
can trust. In other words, electronic government aims at reliable government that
reduces administrative costs and provides effective and high quality public services,by using information technology as much as possible.
However, I would like to confirm that “electronic government,” although quoted
very often in present day, the concept of “electronic government” is far from being
uniform or solid.

It depends on the level of democratization, internationalization,or liberalization of each country, and therefore, must be a plural and fluid concept.
Taiwan began their policy implementation for electronic government andinformation disclosure in the second half of the 1990s, in the trend of IT revolution
and electronic government. The first step began by declaration of the executive
branch, which called for “mid-term promotion plan on electronizing the government
and the proliferation of the Internet” (1998-2000).

The plan aimed in connecting

the government and the people, building a comprehensive communication systemand providing universal, rapid, and effective service for the people, through thedevelopment of information and telecommunication technology. There are several
slogans that called for the establishment of the infrastructure on building electronic
government and the internet, such as: “systematization of information transfer”;“systematization of electronized public documents”; “comprehensive classification of
government service, the extension of terminal of public services and the introductionof one stop service”; “reliable and safe infrastructure for telecommunications”.

Thesecond stage began by the introduction of “ordinance to promote electronic
government (2001 to 2004)”.

It aims at improving efficiency of public

administration and quality of public services, as well as constructing an advanced
knowledge-oriented government to the whole nation, by fully utilizing theinformation technology.

There are concrete slogans as follows: “building reliable11and safe infrastructure for information”; “promotion of internet in the governmentand civil servants”; “starting transfer of electronized public documents”; “the use of
the electronic network to submit application for 1500 licenses and permissions”;“abolition of paperwork on person and land”.

The electronic government is a “slimgovernment” that can provide various services effectively, without limits on time andspace.

It also aims for an effective, planned, competitive, and cooperative

government, and in general, aims at a modernized knowledge management
government.

The recent project for the purpose of electronic government is

becoming clearer at the second stage than the first.

Although downsizing andefficiency is emphasized in the idea of electronic government, openness,transparency, improvement of public service, and democratization of public
administration are also thought to be included in the project of electronic
government.
B) Meaning of information disclosure from the viewpoint of public administration
law
Information disclosure consists of internal disclosure and external disclosure,for public administration.

Internal disclosure means information disclosure

between government branches or between government and business that iscommissioned for official work.

External disclosure means not only information

disclosure between the government and the people, but also active provision of policy
information through the Internet, disclosure of administrative procedure andprocess, and participation through the Internet.
internal and external is relative and fluid.

However, the dichotomy of

In the following, information disclosurein Taiwan will be described in more detail.
a. Internal disclosure in the public administration
Internal disclosure aims at downsizing and enhancement of efficiency of
the government, by promoting disclosure between central and local
governments, and constructing system of communicating information.

We

have such specific projects in Taiwan:
1)

Government Structure Network (GSN) will connect network
centers of government branches and with respect to thisstructure, they are systematizing common information andtransfer orders, notice, and opinions through the Internet;

2)

In order to achieve efficient and smooth administration,
government office will introduce electronic communication
system of public documents, legal office will introduce electronic
index system of statutes, accounting office will introduce
electronic procurement system, personnel information will
introduce electronic personnel management system, and policy

12evaluation office will introduce delivery management system ofelectronic publications;3)

In order to provide convenient terminal for the people, thegovernment will set up information system in each neighborhood.

Although these projects regarded as internal disclosure, they have somerelations with the people.

For example, electronic index system of statutes,

electronic procurement system will provide important information to thepeople.
b. One of the most important elements of external disclosure is disclosing
information unilaterally, actively, and positively through the electronic media.
That is to say, since the bureaucracy should not conceal or abuse information,
which is a common asset of the people, the government should disclose
information before the claim.

This disclosure realizes the idea of people’s

sovereignty or their right to know.

Disclosure of public administrationmeans not only using sophisticated information technology, but also realizing
effective, simple, and transparent public administration and democratizationof public administration; thus, active disclosure rather than disclosure on
demand will be much more significant in pursuing this purpose.

For

example, disclosing such information as laws and orders, minutes of meeting
before policy decision, or the standard of discretion on licensing andpermissions will enhance credibility of public administration, which will give
more opportunities to the people to control and inspect public administration.
This will also prevent unlawful and unjust public administration, thoroughly.
Since the disclosure policy needs vast amount of budget and will utilize
sophisticated information technology, benefit of its implementation should be
returned to the people.

Benefit in this case means strengthening control andinspection of public administration by the people, and giving basic values forvarious kinds of activities of people and enterprises.

Otherwise, the reason

and legitimacy of disclosure policy will be questioned.
Freedom of Information Act (FOIA) of US is the most famous example oflegal institution for active and electronic disclosure of public information.
FOIA regulates that place, requirement, procedure, and rules about
information disclosure should be placed on official documents of thegovernment (US statutes volume 5, clause 552, section 1). Any opinions on
policy decision, statement interpretation, and manuals of civil servants should
be available for the public at libraries (section 2).

FOIA expresses the idea ofactive disclosure clearly. As electronic information technology develops, more
information will come to be disclosed.
In Taiwan, administrative procedural law, which was enacted in January
2001, has regulations on active disclosure as follows:13

1. Law and order;
2. Documents about administrative guidance;
3. Standards on license and permission;
4. Policy planning, statistics, and reports on research;
5. Budget and audit documents;
6. Public construction and procurement contracts, and diplomatic
documents;
7. Allocation and reception of subsidy,
8. Minutes of councils.
The above information should be actively disclosed (clause 45).

Since theseregulations on disclosure in administrative procedural law are general rules,
the government should establish specific rules for disclosure of public
information.

We have “provisional rule about disclosure of public

information”

proclaimed

by

the

executive

branchandpersonnel

management authority on February 21st, 2001, as a provisional rule, before
the establishment of Taiwanese FOIA.

In this provisional rule, there are

more specific regulations on the eight subjects mentioned above.

For

example, standards on license and permissions mean administrative
regulation on the standard of license of permissions (clause 4, section 2).
Information on minutes of councils must contain cases deliberated by therespective organs and names of the members of the councils (clause 5).
Information on law and order must contain only executive orders based onlaw.

Laws or decisions in the court are not contained, therefore, thecoming disclosure law should re-examine this point.

Concerning the media

of disclosure, the government can choose official documents or electronic
devices at the present time however, if electronic government isaccomplished totally, information will be disclosed through electronic device
only.
c. The second meaning of external disclosure is using information technology
in all procedure or process of public administration. Disclosure in this sense
will have significant influence on public administration.
First,

application

andreportingprocedure

will

be

electronized.

Application and reporting procedures were done through paper documents,
but it will be accessible online, as well as become electronized.

In this system,

citizens make access to public administration through the information
technology.

Moreover, one stop service brings about change to therelationship between citizens and public administration.

Up until now,

people had to go to the government office to submit applications and otherdocuments, get inspected at each office, then finally either get rejected or
receive permission from the government.

14

Application must be submitted ateach office, which caused heavy burden on the people; the process was time
consuming, and was a red tape.

This system was also the reason for

ineffective administration of the bureaucracy.

If we introduce one stop

service, citizen can submit any kind of application to one office, and can know
the result of the application for the license and permission at the same office.
It saves time and is also cost efficient; citizens can use this service whereverhe/she lives in the country.

Similar service can be applied to the process ofreporting and claims.
According to the “plan for promoting electronic government” with regard to
the 1500 matters concerning application, the government will electronize 10%
by 2001, 20% by 2002, 30% by 2003, and 40% by 2004.

At the same time,reporting procedure to the Census Registration Office can also be madethrough the electronic media.

By this reform, application procedures will

become more simplified and administration will become more efficient.
Second, electronic media is involved in administrative procedure.
Generally speaking, administrative procedure contains hearing, explanation,
disclosure of reason, establishing and disclosing of standard of decision anddiscretion, notification, etc.

For example, disclosure of reason, establishingand disclosing of standard notification can be processed through electronic
media.

This information will be sent by the electronic media, instead ofbeing notified orally or by statement.

However, there are some elements thatcannot be processed through the electronic media.

For example, hearing of asemi-judicial procedure consists mainly of oral debates.

This face-to-faceprocedure is indispensable for finding the truth and clarifying an issue.
cannot imagine a hearing through an artificial media.

We

Therefore,

involvement of electronic media into administrative procedure has some
limits.

Information technology in administrative procedure should not

obstruct the idea of fair administration.
Third, electronic media also involves administrative means.

Typicalexample is using electronic media in public contract, or a so-called electronic
procurement.

If the government introduces information technology incompetitive procurement, selection of contractor and bidding is done throughthe electronic media.

If the procedure of procurement is electronized, theprocess of procurement will be much more transparent and more fair. Also,
we can introduce information technology in the formation of orders or
executive ordinance.

In the formation process, the government can gather

opinions through electronic media and disclose proposal through it.
Fourth, procedure on public duties can be improved by information
technology.

For example, people can pay tax, commission, and any otherrelated charges through the electronic media.

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Fifth, important information for the people will be stored and sharedthrough the electronic media.

For example, information concerning

employment, information on traffic violations, information on medicine andhygiene, information concerning census registration, information on land, andinformation on police will be stored on database.
d. Participation through electronic media:

Disclosure has another meaning--

people can get necessary information from the electronic media and express
opinions through it, in the process of policy formation.

In the administrative

process, introduction of electronic media aims at protecting people’s rights anddisclosing the public administration. In the political aspect, introduction ofelectronic media aims at enhancing meaningful public participation inadministration.
Under

the

conventional

representative

democracy,

informationonlegislature and administration is monopolized by the legislature and thebureaucracy.

It was often criticized that people have difficulty in expressing

their opinions or participating in the process of legislation and administration.
As Internet becomes more popular, people can express their opinions directly
and participate easily through the Internet.

This change will reduce thedistance between the government and the people, as well as prevent
autocratic decision of the legislature or the bureaucracy.
However, there is no specific project on participation through the electronic
media, in terms of policy making, in Taiwan yet.

Although administrative

procedural law gives the people right to propose a draft of ordinance (clause152) that clause does not force the government to accept such proposal.
Therefore, we do not have an effective method of participation through theelectronic media.

In the process of policy formation, we have opportunities toexpress opinions through the homepage of each organ, in some cases, butparticipation through a homepage is not legally institutionalized yet.
(C) Globalization as disclosure of public information and local autonomy in Taiwan
a. Relationship between disclosure and autonomy by residents
Since the modern parliamentary democracy was based on representative
democracy, people have always complained that they were not able toparticipate in political decision-making.

The issue of how to embody the ideaof people’s sovereignty and provide effective opportunity of participation to thepeople has been important problems for a long time.

Disclosure of public

administration or electronic government enable the people to express theiropinions freely in the process of policy formation, and participate directly inpolicy making process.

Moreover, as people have more opportunity toparticipate in politics and public administration, they are required to behave

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actively and autonomously, more than ever.

People should develop theability of logical discussion and rational judgment, as well as attitude of fairand democratic citizens.

Thus, electronic government is expected to solve theproblem of inefficiency of representative democracy, to some extent.

Inparticular, in local governments, residents can easily express their opinions
and participate in the process of decision-making on issues that closely relate
to their own rights and interests.

That will cure inadequacy of local

assembly and lead to the notion of autonomy by residents.
However, direct participation by the people raises serious questions to themeaning of parliamentary democracy or representative democracy.

When wedevise an institution of participation through the electronic media, we should
deliberate on the meaning of participation, in the process of administrationand legislature, in terms of equality in participation method, participation
eligibility of people, and legal effect of participation.
In Taiwan, autonomy by residents will be transformed by internal
disclosure of administration, electronic disclosure of public information,
disclosure of administrative procedure and process, and participation throughthe electronic media.
b. Problem of digital divides
So-called digital divides undermine the right to access and equality on
government information.

Before electronic government or disclosure of

information is fully accomplished, people cannot acquire information equally.
Even if information disclosure is completely accomplished, in terms of
information technology, it is doubtful whether all the people can get thenecessary information adequately. That is to say, so-called digital divides cando damage to a fair and just society.

In Taiwan, level of disclosure is different

from prefecture to prefecture, according to the standard of public finance,
education, and income.

It is also a very important question whether

government should guarantee the real right to access and equality to all.
This problem includes reestablishment of human rights.

To solve thisproblem, we should search for the nature of digital divides and its reason.

In

my opinion, differentiation of people is unavoidable because information
technology is always accompanied by technical limits. It is almost impossible
to clear the gap of information.

The important thing is to provide real rightto access government information, by legal guarantee to those people who
cannot use information technology.

When we think about legal guarantee,

we should take into consideration the budget, and also the reason for digital
divides.
c.

Relationship between the central and local
Information disclosure will make reallocation of authority and tasks

17inevitable.

For example, if the government introduces one stop service

completely, it should remove organizations and powers that obstruct efficient
handling of applications; that is to say, annexation, abolition, and coordinationof organization is necessary in order to proceed with tasks efficiently andsmoothly.

The government should seek for the same reform between thecentral and local.
If information exchange is systematized between the central and local,
administration will become more simple and efficient.

However, the central

government might strengthen control and intervention by emphasizing
convenience, efficiency, and uniformity of administration.

We should takenote of this problem.
In Taiwan, we do not have a sustainable system of local finance, and local
governments depend heavily on subsidy from the central government forrevenue.

In this context, the central government might use information

disclosure to enhance intervention to the local government.

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