Hu Ling-chi et al. filed a petition with the Constitutional Court regarding the Taiwan Hualien District Court’s criminal judgment 2008 Jian-Shang-Zi No. 58 and the constitutionality of Article 146, Paragraph 1 (altering election returns) and the January 24, 2007 amended Paragraph 2 (false census registration) of the Criminal Code. The National Human Rights Commission (NHRC) appointed Commissioner Yeh Ta-hua to appear before the Constitutional Court as an expert agency to provide Expert Opinion of the NHRC on the constitutionality of these provisions.
The NHRC reiterates that as a democracy, the Taiwan government shall provide the highest degree of protection for its citizens’ political rights, freedom of movement, and personal privacy. Article 25 of the International Covenant on Civil and Political Rights (ICCPR), along with General Comment No. 25 on the ICCPR, provides for the free exercise of the right to vote without any distinctions or unreasonable restrictions. Article 12 and General Comment No. 27 stipulate that freedom of movement shall not be subject to disproportionate restrictions. Article 17 and General Comment No. 16 state that no one shall be subjected to intrusion into or destruction of their privacy, family, or home. Finally, Article 26 mandate equality before the law and prohibits discrimination. Therefore, the NHRC believes that Article 146 of the current Criminal Code, which criminalizes the intent to relocate and vote, is hardly consistent with the ICCPR.
In her testimony, Commissioner Yeh argued that all votes in a democratic election are intended to “elect certain candidates to office.” Therefore, voters who relocate in order to vote in a local election cannot be said to be “incorrectly altering election returns.” In fact, it is an act that truly demonstrates the spirit of political rights and universal suffrage. Furthermore, forcing people to register their residence in the administrative region where they live or work is a breach of their fundamental rights and freedoms, and can be seen as an infringement of their political rights, personal privacy, and freedom of movement. Finally, the current law does not punish prospective candidates in a local election who have moved between administrative regions within the most recent four-month period, nor does it penalize voters who fail to actively register their new residence after moving away from an administrative region, which highlights the inconsistency of the law itself.
In a democratic state, the political rights related to election, freedom of movement, and the right to personal privacy should be highly protected and must conform to the principle of equality. The current provisions of Article 146 of the Criminal Code cannot be said to fully comply with the protections of human rights under Articles 12, 17, 25, and 26 of the ICCPR.
On July 28, 2023, the Constitutional Court issued the judgment of the case (2023 Xian-Pan-Zi No. 11).