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(釋字第 380 號 )      友善列印PRINT  
Interpretation
J.Y.
Interpretation
NO.380 
Date 1995/5/26
Issue Article 22, Paragraphs 1 and 3, of the Enforcement Rules of the University Act require universities to design compulsory courses to be taken by all the students regardless of their majors, and no student may graduate if he fails to pass such courses. Does the said provision violate Article 11 of the Constitution which guarantees the freedom of teaching to the people?
Holding   The provision regarding the freedom of teaching provided in Article 11 of the Constitution is an institutional protection mechanism for academic freedom. Such provision shall encompass the freedom of research, instruction, and study, etc., in the field of college education. Article 1, Paragraph 2, of the University Act provides that "A university shall be protected under the academic freedom and shall, to the extent permitted by law, be entitled to the right of self-government." The scope of such a right of self-government shall cover all essential academic matters that relate directly to research and teaching. Although the University Act does not specifically state the arrangement of college curricula, it is one of the essential academic matters and shall therefore be included within the scope of university self-government, since it is directly related to the freedom of teaching and study. As it is explicitly given in Article 162 of the Constitution that "All public and private educational and cultural institutions state-wide shall, in accordance with the law, be subject to state supervision," such supervision of university self-government shall not only be carried out within the framework of law, but be consistent with the principle of legal reservation, as set forth in Article 23 of the Constitution. The design of core curricula, except for those explicitly regulated by the law, should also comply with said principle of university self-government. Article 22, Paragraph 3, of the Enforcement Rules of University Act reads: "The core curriculum common to all universities shall be jointly designed by relevant personnel from all universities, upon the invitation of the Ministry of Education." Nonetheless, the University Act has not authorized the Ministry of Education to "invite" all universities jointly to design the core curriculum common to these universities. As such, the content of the Enforcement Rules of the University Act shall not add restrictions that are not stipulated in the University Act. In addition, in the last sentence of the same Article, Paragraph 1 of said Enforcement Rules, the clause "Those who fail any of the core curriculum common to all universities may not graduate" is a restriction on the qualification of graduation and therefore serves, in essence, to transform the design of the core curriculum common to all universities into a restrictive condition for graduation, given that Articles 23 and 25 of the University Act and Articles 2 and 3 of the Act Governing the Conferment of Academic Degrees stipulate that conditions for graduation shall fall within university self-government. Said last sentence of Article 22, Paragraph 1, of the Enforcement Rules of the University Act has gone beyond, whereas Paragraph 3 of the same Article has not been authorized by, the University Act and neither is in accord with the constitutional intent provided above. Such provisions should therefore become null and void no later than one year from the publication date of this Interpretation.
Reasoning   The provision regarding the freedom of teaching provided in Article 11 of the Constitution aim at safeguarding academic freedom. Such a safeguard mechanism should be enforced by means of university organization as well as other institutional administrations, namely, an institutional protection mechanism. To protect academic freedom, the right of universities to govern themselves should be recognized, so that academic activities such as research, teaching and learning do not have to be subject to improper intervention, and universities may thus enjoy the right of self-government in terms of organizational as well as operational matters, whereas individuals may enjoy academic freedom. As it is explicitly given in Article 162 of the Constitution that "All public and private educational and cultural institutions state-wide shall, in accordance with the law, be subject to state supervision," and Article 1, Paragraph 2, of the University Act that "A university shall be protected under the academic freedom and shall, to the extent permitted by law, be entitled to the right of self-government," the education authorities’ supervision of universities should be authorized by the law, and the law per se should abide by the principle of the reservation of law provided in Article 23 of the Constitution.
  It is our understanding that academic freedom is closely related to the development of education. With respect to the process of development, academic freedom, which is supposed to be free from intervention of the State, shall first reveal itself by means of the freedom of research and instruction, whereas the scope of safeguarding academic freedom shall extend to cover all other important academic activities that have to do with excelling in knowledge and exploring the truth, such as the formation of the research motive, the proposal of a research project, the composition of the research staff, the allocation of the research budget, the publication of the research results, etc. These academic activities should not only be protected but allowed to share the resources of society. Aside from research, matters of teaching and learning, such as the design of curricula and courses, the content of lectures, the evaluation of scholastic aptitude, the rules of examinations, the students’ freedom to choose major(s) and curricula and student autonomy are also protected. Besides the aforementioned, the organization of universities and the evaluation and employment of instructors also fall within university self-government and should not be susceptible, specifically, to exterior interventions that are inappropriate. Articles 4, 8, 11, 22, 23, and the first sentence of Article 3 of the Private School Act reveal the legislative intent that universities should be subject to the supervision of the state; nevertheless the education authorities should refrain from tampering with the aforementioned matters regarding academic freedom when exercising their power of administrative supervision under the law. Since the autonomy of college curricula is relevant to the freedom of teaching and of learning and is therefore a matter of importance to academics, it should also be embraced by the institutional protection mechanism of academic freedom under the Constitution. Thus, the design and arrangement of university curricula should be handled by each university in accordance with the principle of university self-government and academic responsibility.

  Article 23 of the University Act regulates the extension and reduction of the academic years as a matter of university self-government and authorizes each university to draft relevant rules, so that they may be enforced after receiving the approval from the Ministry of Education. As such, the Ministry of Education is merely in the position of exercising "supervision on legitimacy" over the operation of each university. When exercising such "supervision on legitimacy," it is certain that the Ministry of Education should comply with the protection of academic freedom and the respect of university self-government and, therefore, should not add restrictions not provided by law. By the same logic, the design of the core curriculum should be in accordance with said principle of university self-government, unless the law provides otherwise. It is provided in Article 22, Paragraph 3, of the Enforcement Rules of the University Act that "The core curriculum common to all universities shall be jointly designed by relevant personnel from all universities, upon the invitation of the Ministry of Education." Nonetheless, the University Act has not authorized the Ministry of Education to "invite" all universities jointly to design the core curriculum common to these universities. As such, the content of the Enforcement Rules of the University Act shall not add restrictions that are not stipulated in the University Act. The core curriculum common to all universities designed by the Ministry of Education serves as, according to the aforesaid reasoning, nothing more than a sample guideline for the reference of universities when designing their respective core curricula. The clause "Those who fail any of the core curriculum common to all universities may not graduate" in the last sentence of the same Article, Paragraph 1 of said Enforcement Rules, is a restriction on the qualification of graduation and therefore serves, in essence, to transform the design of the core curriculum common to all universities into a restrictive condition to graduation, given that Articles 23 and 25 of the University Act and Articles 2 and 3 of the Act Governing the Conferment of Academic Degrees stipulate that conditions for graduation shall fall within the extent of university self-government. Said last sentence of Article 22, Paragraph 1, of the Enforcement Rules of the University Act has gone beyond, whereas Paragraph 3 of the same Article has not been authorized by, the University Act and neither is in accord with the legislative intent of the Constitution provided above. Such provisions should therefore become null and void no later than one year from the publication date of this Interpretation. In addition, it is our intention to point out that, during said period, the design and arrangement of the core curriculum common to all universities shall either be regulated explicitly by law, in compliance with the spirit of university self-government, or designed by each university, based on the procedure of autonomy.

Translated by LAWRENCE S. LIU.
Opinion Chinese only
 

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