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  • Interpretation
  • No.659
  • Date
  • 2009/05/01
  • Issue
    • Is Article 32, Paragraph 1 of the Private School Act, as amended on June 18, 1997, unconstitutional?
  • Holding
    •     Article 32, Paragraph 1 of the Private School Act, as amended and promulgated on June 18, 1997, provides: “ if a board of directors cannot convene its meeting(s) as a result of dispute, or is in violation of education laws and regulations, the government agency in charge of the education (hereinafter referred to as the “Authority”) may order the school to take steps to improve the situation by a specified date and shall the board fail to comply, the Authority may then remove all of the board members from office.  Nevertheless, in the event severe circumstances and urgent situation arise, the Authority may, after consulting the Private School Consultative Committee (the “Committee”) to obtain a resolution from the Committee, forthwith remove all of the board members from office or suspend all of their powers for two to six months with the possibility to extend if necessary.”  With respect to the paragraph “if a board of directors cannot convene its meeting(s) as a result of dispute, or is in violation of education laws and regulations”, while its literal meaning and legislative purpose may not be incomprehensible to those directors who are subject to the law, it can be scrutinized and defined through judicial review, and there should be no violation of the principle of clarity and definiteness of the law.  The proviso stipulated in the Article is aimed to maintain the sound development of private schools, and to protect students’ right to education as well as faculty and working staff’s right to work, among other important interests.  Such objectives are justified and the restrictive means taken are necessary to accomplish the goals and, therefore not inconsistent with the principle of proportionality under Article 23 of the Constitution, nor in conflict with the people’s right to work guaranteed by the Constitution.
      
  • Reasoning
    •     Freedom to choose an occupation is indispensible for the people to enrich the content of their lives and to freely develop their characters and it will not be any different whether the nature of occupation is for public welfare or personal interest or for profits seeking or non-profits seeking, all of which are falling within the purview of the right to work guaranteed by Article 15 of the Constitution.  Nevertheless, to improve public welfare and to the extent in compliance with the requirements prescribed by Article 23 of the Constitution, the State may, by statute or by statutory mandated administrative ordinances, limit the freedom to choose an occupation. 
      
    •     The Private School Act, as amended and promulgated on June 18, 1997 (hereinafter referred to the “Old Act”), regulates that the position of directors shall be non-paid, provided that stipends may be paid for meeting attendance and transportation and that directors shall serve for a term of three years, and may serve consecutive terms if re-elected (see Article 34 and the first Paragraph of Article 23). The scope of authorities of the board of directors shall include: (1) the appointment and discharge of directors, and the election and discharge of the chairman of the board; (2) the appointment and discharge of the principal; (3) the review and approval of status reports, planning and crucial regulations of school; (4) fundraising; (5) the review and approval of budgets and annual account settlements; (6) the management of funds; (7) the supervision of financial affairs; and (8) all other authority granted to the board of directors by this Law (see Article 22). Consequently, the directors’ exercising their authorities pursuant to the Private School Act shall fall within the purview of freedom to choose an occupation and, shall therefore be guaranteed the right to work under the Constitution.
      
    •     With a high degree of public interest and welfare, education is State’s long-term project and its effect is far-reaching.  Article 162 of the Constitution provides that all public and private educational and cultural institutions in the nation shall be subject to State supervision in accordance with the law.  The Old Act was thus enacted to realize the meaning and purpose of this Constitution provision.  Article 32, Paragraph 1 of the Old Act provides that: “if a board of directors cannot convene its meeting(s) as a result of a dispute, or is in violation of education laws and regulations, the Authority may order the school to take steps to improve the situation by a specified date and shall the board fail to comply, the Authority may then remove all of the board members from office.  Nevertheless, in the event severe circumstances and urgent situation arise, the Authority may, after consulting the Private School Consultative Committee to obtain a resolution, forthwith remove all of the board members from office or suspend all of their powers for two to six months with the possibility to extend if necessary” (hereinafter referred to as the “disputed provision”).  Removing all of the directors from office is a restriction on their subjective condition concerning the freedom to choose an occupation (see J.Y. Interpretations Nos. 637 and 649).  The State, wishing to do so, must be for the purpose of pursuing an important public interest and the means taken shall be substantially related to attainment of its purpose.  The disputed provision stipulates that if a board meeting can not be convened due to a dispute, or if the board has violated education laws and regulations, the Authority is then authorized to timely intervene to maintain the sound development of private schools, and to protect students’ rights to education as well as faculty and working staff’s rights to work, among other important interests.  It is in line with the meaning and purpose of Constitution’s fundamental national policy and is thus justified and appropriate.
      
    •     Pursuant to this Yuan’s past Interpretations, the concepts used in a statute are not inconsistent with the principle of clarity and definiteness of the law if their meanings, through the statute’s text and legislative purpose, are not incomprehensible to those who are subject to the statute, and may also be scrutinized and defined through judicial review (see Interpretations 432, 491, 602 and 632).  With respect to board meetings that can not be convened as stipulated in the disputed provision, it is sufficient so long as it is the result of a dispute, regardless of whether the dispute is attributable to any individual board member’s fault.  Given that the board shall convene at least once every semester to be called by the chairman of the board, or to convene within 10 days after the chairman receives a written request of more than 1/3 of the incumbent directors that states the purpose and reasons of the meeting (see Paragraph 1, first part of Paragraph 2 and first part of Paragraph 3 of Article 27 of the Old Act) and that a board resolution requires a quorum of more than 1/2 of the directors, or more than 2/3 of the directors for material matters (see Article 29, Paragraph 2), the so-called “cannot convene its meetings” refers to the above-cited provisions under the Old Act.With regard to the part that concerns whether the board of directors violates education laws and regulations, it is premised on the fact that the relevant education laws and regulations are clear and definite in text, that their scope can be ascertained and their contents are not incomprehensible to the directors who are subject to the law.Furthermore, it cannot be the legislative intent of the disputed provision to assume that a board of directors is deemed to have violated education laws and regulations and is still considered necessary that it should first have a dispute; otherwise even when the board unanimously passes an illegal resolution that damages the rights of students and faculty, the Authority would still lack the authority to supervise private schools and have them take remedy measures.Consequently, the Authority can exercise its supervision power so long as the board of directors of private schools either “cannot convene its board meeting(s) as a result of a dispute” or “has violated education regulations”.  If the disputed provision, through its text and legislative purpose, is not incomprehensible to the directors who are subject to the disputed provision and can be foreseeable by them, and may also be scrutinized and defined through judicial review, it is not in conflict with the principle of clarity and definiteness of the law.
      
    •     In view of the discrepancy in the nature of occupation, the Constitution allows different degrees of restrictions on the freedom to choose an occupation.  The proviso contained in the disputed provision empowers the Authority a right to remove all of the directors’ power from office or suspend them from office for two to four months with the possibility to extend if necessary.  The proviso of the disputed provision indeed imposes a restriction on the directors’ freedom to choose an occupation.  Yet as an important organization of private schools, the board of directors in exercising its powers would greatly impact on the operations of private schools.  Consequently, if a board meeting cannot be convened due to a dispute or has violated education regulations, and if the circumstances and situation are considered serious and urgent, the legislators have thus empowered the Authority a right to take emergency measures to secure the sound operations of private schools.  The measures to be taken are not limited to the removal of all of the directors’ power from office but can include the option to suspend all of the directors’ power from office.  Furthermore, the Authority has established the Committee and pursuant to Article 5 of the Old Act and Article 3, Paragraph 1, as well as Article 4, first part of Paragraph 2, of “Regulations Governing the Selection and Assembly of Private School Consultative Committee Members”, promulgated by the Ministry of Education on March 18, 1998, the Committee comprises of scholars, experts, representatives from private schools, communities and other relevant institutions.  Resolutions of the Committee cannot be passed unless they are approved by a majority of the Committee members present, who represent 1/2 or more of the total Committee members.  Furthermore, the Authority cannot remove or suspend all of directors’ power from office unless it has first obtained a resolution from the Committee.  Given the Committee is composed of representatives of different characters, its joint resolutions should be objective.  The Authority apparently does not make capricious and groundless determinations to extend the duration of suspension now that such determination must first go through the resolution of the above-mentioned Committee.  Consequently, even if the proviso of the disputed provision does not set the limitation for the extension terms and times, the restriction on the directors’ freedom to choose an occupation is not excessive, is substantially related to the attainment of the object, and is necessary to protect an important public interest.  As such, it is not inconsistent with the principle of proportionality under Article 23 of the Constitution, nor is it in conflict with the people’s right to work guaranteed by the Constitution.
      
    • Translated by Wei-Feng Huang
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