If local governments were to continue using the old high-school curriculum guidelines, they would have the law on their side. This is why:
First, in principle, the Ministry of Education has no right to conduct a substantive review of textbook contents and can make only a formal review. The Educational Fundamental Act (教育基本法) complements Article 10, item 10 in the additional articles to the Constitution, which says: “Priority shall be given to funding education, science, and culture, and in particular funding for compulsory education, the restrictions in Article 164 of the Constitution notwithstanding.”
According to Article 2 of the act, the right to receive an education is intended to be for the benefit of the people. Of course the ministry, which exists to assist the public, must not ignore the formation of a normal national identity, providing a correct international outlook and nurturing the ability to form judgements among students, for whom the right to an education is intended, nor must it ignore offering a diversified historical viewpoint — itself a core value.
Also, according to Article 4 of the education ministry’s administrative Regulations on the Review and Approval of Senior High-School Textbooks (高中教科書審定辦法), as well as Article 48 of the regulations’ parent act, the Senior High-School Education Act (高級中等教育法), which deals with the editing of curricula, the ministry can in principle conduct only a formal review of textbooks. Nowhere in these rules does it say “substantive content review,” and only in Article 7 is it explained that such a substantive review can be made in exceptional situations, precisely because it cannot violate the Educational Fundamental Act.
Second, for the ministry to be allowed to make an exceptional substantive content review, there first must be a legal and appropriate curriculum guideline, or it will not be possible to invite experts to review textbooks “in accordance with the curriculum,” as required by Article 7 of the Regulations on the Review and Approval of Senior High-School Textbooks. This why it would be difficult to claim that the decision by local governments to continue using the old curriculum is illegal.
It is obvious that the curriculum guidelines on the ministry’s Web site are neither legal nor appropriate. Because none of the people revising the guidelines are history experts, they have made the mistake of thinking that Taiwanese and Chinese history are linked, and that is why students’ national identity, international outlook and ability to make judgements have been ignored.
Consider Cheng Cheng-kung (鄭成功) as an example. It was a matter of record during the Qing Dynasty that Cheng did not try to reinstall the Ming emperor, so where on earth does the idea that he did come from? Since the guidelines are both illegal and inappropriate, there is no need to resort to the rule for exceptional content review in Article 7, and it also means that there is nothing wrong with continuing to use the old — reviewed and approved — guidelines.
Third, in making a substantive content review, the ministry can be suspected of trying to destroy the legal system, because it is relying on review and approval regulations that are a set of internal administrative regulations. It would be very difficult to imagine that any country that abides by the rule of law would allow an internal administrative regulation to encroach on its constitution.