Court/Judicial body: Taipei High Administrative Court
Date: 24 March 2011 CRC
Provisions: Preamble Article 19(1): Protection from abuse and neglect Article 28(2): Education
Domestic provisions: Education Fundamental Act of Taiwan, Article 8
Case summary
Background: The defendant, the Bureau of Education of New Taipei City, rolled out a course schedule reform plan for elementary schools in 1999. Under the plan, students were required to enrol in some additional English courses. Three students at various schools affected by the plan, their respective legal representatives/parents, as well as two teachers, sued the defendant, alleging, among other things, that the plan violated the students’ right to study, right to education, right to personal autonomy, and right to personality development under Article 8 of the Education Fundamental Act (“Act”).
Issue and resolution: Right to education. The court found that the course schedule reform plan did not violate the students’ rights to study, education, personal autonomy, and personality development under Article 8 of the Act.
Court reasoning: Article 8, Clause 2 of the Act (1988) granted to students the right to study and the right to education. Clause 2 was amended in 1995 by granting additional rights of personal autonomy and personality development to students, in accordance with the CRC, aiming to protect the physical integrity and human dignity of children. However, the rights under Clause 2 are not available under every circumstance where there is an impairment of the right to education. Article 19(1) of the CRC, which was the basis of the rights under Clause 2, requires States to take appropriate measures to protect the child from all forms of violence, injury or abuse. Thus, the intended protected parties under Clause 2 are those who have been deprived of their rights to study, education, personal autonomy and personality development due to any form of violence or abuse. The students, therefore, are not end to allege violations of Clause 2 as to the implementation of the course schedule reform plan.
Excerpt citing CRC and other relevant human rights as in full-text Taiwanese decision: 2.按88年6 月23日制定之教育基本法第8 條規定：「…（第2 項）學生之學習權及受教育權，國家應予保障。…」，嗣於95年12月27日修正第8 條第2 項規定為：「學生之學習權、受教育權、身體自主權及人格發展權，國家應予保障，並使學生不受何體罰，造成身心之侵害。」，修正理由為：「參酌聯合國兒童權利公約前言、第19條第1 項以及第28條第2 項，肯定教育過程中，學生之身體完整性及人性尊嚴應受尊重，並且不受照護者之暴力對待。」，而聯合國兒童權利公約前言內容主要揭示：兒童應在社區及家庭環境，以幸福及瞭解氣氛成長，使其人格得到充分和諧之發展，並應在聯合國憲章所揭示之理想精神，特別是在和平、尊嚴、寬容、自由、平等以及團隊精神之下獲得培育成長等語，而宣言之第19條第1 項規定：「簽約國應採取一切立法、行政．社會與教育措施防止兒童在其父母、法定監護人或其他照顧兒童之人照顧時遭受身心脅迫、傷害或虐待、遺棄或疏忽之對待以及包括性強暴的不當待遇或剝削。」、第28條第2 項：「簽約國應採取一切措施，保證學校校規之內容與兒童人權尊嚴不相違背，並保證遵照此條約之規定執行。」 3.教育基本法第8 條…同條第2 項之學生學習權等，依前述修正理由為使兒童及學生之學習不受父母、法定監護人等傷害、遺棄等致學習權、受教育權、身體自主權及人格發展權受限制，為維護人性尊嚴，不受照顧者暴力對待，乃要求國家予以保障，故此之學習權等係針對以暴力等虐待兒童，致影響其學習權等為對象；…
CRIN English translation: 2. …Under Article 8, Clause 2 of the Education Fundamental Act enacted on June 23, 1988, “ the state shall ensure the students’ right to study and right to education.” Clause 2 was further amended on 27 December, 1995 as: “ the state shall ensure the students’ right to study, right to education, right to personal autonomy, and right to personality development; the state shall protect the students from any form of corporal punishment that might cause physical or mental harm.” The reason for the amendment was “ to acknowledge that the students’ physical integrity and human dignity shall be respected during the course of education, and the students shall be free from any form of violent treatment by caretakers, in consistent with the Preamble, Article 19 Clause 1, and Article 28 Clause 2 of the CRC.” The Preamble of the CRC provides that the child should grow up in a family environment, in an atmosphere of happiness, love and understanding for the full and harmonious development of his or her personality, and the child should be brought up in the spirit of the ideals proclaimed in the Charter of the United Nations, and in particular in the spirit of peace, dignity, tolerance, freedom equality and solidarity. Article 19, Clause 1 provides that “States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.” Article 28, Clause 2 provides that “States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child’s human dignity and in conformity with the present Convention.” 3. …Thus, as the reason for amending Article 8, Clause 2 of the Act was to protect the child’s right to education, right to study, right to personal autonomy and right to personality development from any limitations caused by violence, injury, and negligent treatment while in the care of parent(s), legal guardian(s), or any other person, and to ensure the child’s human dignity, Clause 2 only applies in those situations where the child’s right to study is affected by violent treatment or abuse…
CRIN comments: CRIN believes this decision is consistent with the CRC. Apart from Article 28, Article 29(1) provides that States agree that education should be directed to a wide range of values, including the development of the child’s personality and abilities, fostering of respect for the child’s cultural identity, language and values, and for the cultural values of other civilisations. Article 29(2) gives individuals and bodies the liberty to direct educational institutions so long as the aims of education under Article 29(1) and minimum standards as laid down by the State are respected.
Citation: 99, Su, 1999 (2011) Link to Full Judgment: Available on request