Article 15 of the Constitution protects the right to work, including the right to choose and pursue an occupation. If the law imposes some conditions on the right to choose and pursue an occupation, such conditions constitute restrictions on those rights. The principle of clarity requires that such restrictions be set out clearly in laws and regulations. Moreover, the principle of clarity allows the legislature, after weighing the complexity of society and the propriety of application in specific cases, to use general terms in the statutory language as long as the meanings of such terms are (a) not difficult to understand, (b) foreseeable for the people affected, and (c) subject to judicial review.(Interpretations Nos. 521, 545, and 659)The question of whether a particular restriction on the right to choose and pursue an occupation is constitutional is governed by various standards. Whether a particular standard governs the constitutionality of a restriction depends on the content of the restriction. If a particular restriction sets out subjective requirements for an occupation, the principle of proportionality, as provided for in Article 23 of the Constitution, requires the purpose to be important to the public interest and the means to be necessary. (Interpretations Nos. 584 and 649)
Article 14, Paragraph 1, Subparagraph 6 of the Act Governing Teachers, as amended on November 25, 2009, provides that “a teacher may not be dismissed by his/her employer unless… he/she is found by a relevant government agency to have committed an act that is inconsistent with teachers’ morals and dignity.” (hereafter referred to as the First Disputed Provision) (Subparagraph 6 became Subparagraph 7 after the Act Governing Teachers was amended on January 4, 2012.) The First Disputed Provision was enacted because an individual had violated the ethical norms so seriously that it was no longer appropriate for him to be employed as a teacher. As it is impossible for the Legislative Yuan to set out comprehensive rules for ethical norms and the circumstances of every violation, the Legislative Yuan chose to set out the rule using “broad legal concepts” (unbestimmte Rechtsbegriffe, or bu queding falu gainian). The specific meanings of such broad legal concepts may be spelled out in each case by institutions that are properly constituted and unbiased according to both their professional knowledge and the general consensus of society. An example of such an institution is the teacher evaluation committee of each school, established by Article 11 and Article 14, Paragraph 2 of the Act Governing Teachers; Article 20 of the University Act; and the Regulations Establishing Committees for the Evaluation of the Teachers Working at Public High Schools, Public Junior High Schools, and Public Elementary Schools (gaoji zhongdeng yixia xuexiao jiaoshi pingshen weiyuan hui shezhi banfa). In addition, through education and the many statutes, regulations, and voluntary commitments made by members of the teaching profession (Article 17 of the Act Governing Teachers; the Regulations on the Evaluation of the Teachers Working at Public High Schools, Public Junior High Schools, and Public Elementary Schools; and the Self-Regulation Commitments Made by All Teachers in the Nation (quanguo jiaoshi zilu gongyue)), teachers are able to foresee whether a particular act or omission is inconsistent with teachers’ morals and dignity. In addition, many cases in which teachers have behaved in a way inconsistent with the morals and dignity of their profession have arisen in practice, including engaging in sexual harassment, corporal punishment, cheating on examinations, and plagiarism. These cases allow teachers to foresee whether a particular act or omission is inconsistent with the morals and dignity of their profession. In conclusion, the meaning of “inconsistency with teachers’ morals and dignity,” as provided for in the First Disputed Provision, is (a) not difficult to understand, (b) foreseeable for the people who are affected, i.e., teachers, and (c) subject to judicial review. Therefore, the First Disputed Provision is consistent with the principle of clarity. However, in light of the clear patterns established in cases of behavior inconsistent with teachers’ morals and dignity, these types of behavior should be set out clearly in a statute to ensure the highest level of foreseeability. Such a statute should be reviewed and amended as society changes over time.
Article 14 of the Act Governing Teachers sets out the legal effects of the First Disputed Provision. The first half of Article 14, Paragraph 3 prohibits any teacher who commits any act or omission inconsistent with teachers’ morals or dignity from being hired as a teacher again in his/her lifetime. (The same is provided for in the first half of Article 14, Paragraph 3 of the Act Governing Teachers as amended on January 4, 2012, which is referred to hereafter as the Second Disputed Provision.) The second half of Article 14, Paragraph 3 obliges all schools to fire any teacher who commits any act or omission inconsistent with teachers’ morals or dignity. (The same is provided for in the second half of Article 14, Paragraph 3 of the Act Governing Teachers as amended on January 4, 2012, which is referred to hereafter as the Third Disputed Provision.) In other words, any teacher fired by any school for violating the First Disputed Provision may not be hired by any school as a teacher in his/her lifetime. The obligation of a school to fire a teacher for violating the First Disputed Provision and the prohibition against employing the individual again as a teacher are subjective restrictions on the freedom to choose one’s occupation. The question of whether such restrictions are consistent with the principle of proportionality depends, first, on the question of whether the restrictions serve the public interest in an important way. Article 158 of the Constitution of the Republic of China admonishes the government to formulate and realize educational and cultural policies that, among other things, develop the spirit of self-governance and morals among the citizenry. Such an admonition is recognition of the foundational importance of education, as education is the key to improving the overall quality of the citizenry and raising the level of the culture of a nation. The Second and Third Disputed Provisions, requiring all schools to fire any teacher whose conduct is inconsistent with teachers’ morals and dignity, are promulgated for the purpose of ensuring students’ right to receive good education and realizing the admonition provided for in the Constitution of the Republic of China. In other words, the purpose of the Second and Third Disputed Provisions is indeed important to the public interest and therefore a legitimate purpose. (See also Interpretation No. 659)
Respecting teachers is a long tradition of our country, and students respect teachers for more than their knowledge and skills. If a teacher’s conduct seriously deviates from the common moral standards and good customs of the majority of society, he/she sets a bad example both for his/her students and for society. The Second and Third Disputed Provisions impose serious punishment on teachers whose conduct is inconsistent with teachers’ morals and dignity in order to achieve the aforementioned purposes. As to the questions of whether the means are necessary and whether the restrictions are too strict, the Second and Third Disputed Provisions should be examined separately.
Under the existing law, there are various punishments for teacher misconduct. For example, Article 4 of the Regulations on the Evaluation of the Teachers Working at Public High Schools, Public Junior High Schools, and Public Elementary Schools punishes any teacher who commits minor misconduct by freezing his/her salary level. In addition, Article 6 punishes any teacher whose false speech or misconduct harms the school’s reputation by formal admonition (shenjie), any teacher who commits misconduct that harms the reputation of the teaching profession as a whole by making formal records of such misconduct, and any teacher who commits misconduct that seriously harms the reputation of the teaching profession as a whole by making formal records of such serious misconduct. The misconduct punishment system indicates that the nature of a teacher’s misconduct has to be very serious to constitute “an act that is inconsistent with teachers’ morals and dignity.” As a result, teachers’ misconduct must be serious enough to amount to “adversely affecting teacher’s morals and dignity.”The Act Governing Universities does not provide for a similar evaluation mechanism. However, through the Regulations on Teachers’ Evaluation, a self-governance mechanism authorized by Act 21 of the Act Governing Universities, various types of punishment also exist for teachers’ misconduct that does not reach the level of “adversely affecting teacher’s morals and dignity.” In addition, Article 14, Paragraph 3 of the Act Governing Teachers provides for the same legal consequences for all the types of misconduct listed in Article 14, Paragraph 1. Therefore, the misconduct referred to by the First Disputed Provision should be as serious as the other types of misconduct listed in Article 14, Paragraph 1. The Third Disputed Provision, which requires schools to fire teachers who commit serious misconduct, is a restriction as to the subjective requirements (or qualifications) that is the most lenient measure to achieve the same purpose. Therefore, the provision is consistent with the principle of proportionality as provided for in Article 23 of the Constitution and does not violate the constitutional protection of the right to work.
The Second Disputed Provision prohibits all schools from rehiring a teacher who has committed misconduct and therefore deprives such teachers of any opportunity to become a good teacher and adversely affects the development of their character. If the teacher, after being punished by the school and relevant authorities, repents and can become a good teacher, such a transformation would exemplify the benefits of education for students and society as a whole. However, the Second Disputed Provision prohibits any such teacher from teaching again in his lifetime without providing for any exception under which such an individual can teach again, after the passage of a reasonable period of time and after satisfying certain conditions that indicate his/her repentance. The lack of such an exception restricts the right to work beyond the extent necessary; therefore the provision is inconsistent with the principle of proportionality as provided for in Article 23 of the Constitution. The relevant authorities should review and revise the Second Disputed Provision within one year of the promulgation of this interpretation. If the relevant authorities fail to complete such a review and revision within one year of the promulgation of this interpretation, the Second Disputed Provision loses its legal effect from that date.
＊ Translated by Chi CHUNG.