Tue, Sep 02, 2014 - Page 8 News List

Tobacco tests violate human rights

By Hsu Yue-dian 許育典

New Taipei City’s Education Bureau has announced the purchase of 125 carbon monoxide test instruments for distribution to every private and public junior and senior-high school in the municipality to help them ferret out student smokers.

The bureau says that this measure is part of an effort to keep tobacco and narcotics off school campuses. It says that it has spent NT$2.5 million (US$83,430) in the hope that the tests will allow schools to keep tabs on students’ smoking habits and put “deviant” students back on the straight and narrow.

This move by the authorities is taking Taiwan back from a 21st-century country where freedom and the rule of law prevail to the kind of police state that existed under martial law in the 1970s. All of a sudden, human rights in Taiwan have gone back to where they were 40 years ago.

New Taipei City’s “grown-ups” are introducing the testing on the grounds of preventing “teenagers and young adults” from getting hooked on tobacco.

The tests are certainly an invasion of students’ personal freedom, but are such measures constitutional? Furthermore, from the perspective of education policy, it is also worth considering whether this policy is in keeping with the modern concept of student-centered, liberal, open and pluralistic schooling.

In 19th-century police states, any kind of measure could be considered legitimate and lawful based on the purpose of preventing danger. However, this unavoidably gave rise to abuse of authority. Therefore, in the 20th century, the constitutions of countries genuinely practicing the rule of law all explicitly demanded that even measures designed to safeguard the public’s security and prevent danger could only be adopted if the public agreed to them.

Furthermore, authorities are obliged to choose those measures that are the least harmful to people’s rights. Only if they are in keeping with these principles can the measures taken be considered to conform to the constitutional requirements for safeguarding basic human rights.

To use the specialized language of constitutional jurisprudence, whether measures that limit basic human rights are constitutional can be judged according to the formal reservation of statutory powers and the actual grounds of the public interest and principles of proportionality and suitability.

The first issue is whether the measures comply with the reservation of powers. The bureau says that extending the range of people subjected to urine tests is based on the five categories of people listed in the Regulations Governing Urine Sample Testing for Specific Categories of People (特定人員尿液採驗辦法).

First, school and college students who have acted contrary to the Narcotics Hazard Prevention Act (毒品危害防制條例), including those who seek treatment voluntarily. Second, students who have not reached adulthood and who, when applying to resume studies, are deemed to be in need of undergoing a urine test. Third, school and college students for whom there is deemed to be sufficient evidence to suspect that they are using narcotics. Fourth, minor students not included in the previous three subsections whose school or college believe they need to undergo urine tests, and whose parents’ consent has been obtained. Fifth, drivers of school and college vehicles.

It is quite clear that the bureau has applied a broadened interpretation of the applicable categories, which are strictly limited by the regulations. Besides, however broad an interpretation one might make, the regulations only allow for the use of urine sample tests, not carbon monoxide tests. Therefore, the bureau’s policy contravenes the principle of the reservation of statutory powers.

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